9911796707
TMI Blog1992 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... int stock company of which respondent No. 2 is the Director. Respondents are carrying on business of manufacturing articles of plastics, i.e. pipes of fittings, dueling chimney etc. in a factory situate at Chembur, Bombay. The articles manufactured by the respondents are liable to payment of excise duty and the respondents have paid excise duty in accordance with the rate prescribed under Tariff Item No. 68 during period commencing from March 1, 1975 and ending on December 31, 1978. It is the claim of the respondents that in March 1978, it was realised that duty was paid under T.I. No. 68 by mistake of law because the articles manufactured by the respondents were liable to excise duty under Tariff Item No. 15A(2). On realisation of the mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged by the respondents by filing Writ Petition No. 1243 of 1981 under Article 226 of the Constitution before the learned single Judge. The learned single Judge by the impugned order set aside the conclusion of the Assistant Collector of Central Excise and directed payment of the refund as claimed. The learned single Judge relied upon the consistent decisions of this Court holding that once it was found that the recovery of excise was illegal, the provisions of Rule 11 are not attracted and it is open for the High Court to direct payment of refund in exercise of writ jurisdiction. Before the learned single Judge, the accuracy of the quantum of the refund was not disputed. The order of the learned single Judge is under challenge. 3. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Ltd. and Others v. State of Tamil Nadu and Others). The submission is entirely misconceived. In the case before the Supreme Court, the validity of levy of cess on royalty under Section 115 of Tamil Nadu Panchayats Act, 1958 was challenged. The Supreme Court upheld the challenge and in paragraph 36 of the judgment declared that the cess is ultra vires and the Government of Tamil Nadu was restrained from enforcing the same any further. The Supreme Court then observed :- "But the respondents will not be liable for any refund of cess already paid or collected." From this observation, Shri Lokur submitted that the Supreme Court has laid down a law that in no case, refund should be granted, and even when the duty or tax is recovered withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the affidavit was merely tendered before the Prothonotary. As the copy of the affidavit was not served, we direct the Prothonotary to take the affidavit off the record. It is not permissible for the appellants to take the respondents by surprise by tendering affidavit in the registry and without furnishing a copy, to enable the respondents to challenge the correctness of the same. In these circumstances, we decline to examine the contention of Shri Lokur that the respondents have passed on duty to the customers and therefore, are not entitled to claim the refund. In our judgment, the order under challenge does not suffer from any deficiency. 6. Shri Lokur then submitted that in view of the passing of Central Excises and Customs Laws ..... X X X X Extracts X X X X X X X X Extracts X X X X
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