9911796707
TMI Blog1998 (12) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... The further question which arises for consideration is whether by application of the principle of 'unjust enrichment' the said respondents can be denied of getting the refund in question. 2.The respondents had obtained licence to vend Indian made foreign liquor on the basis of a public auction. The Chief Commissioner of Andaman and Nicobar Islands issued a notification purporting to be one in exercise of powers conferred under Rule 29 of Andaman Excise Rules, 1934 prescribing the rate of excise duty payable by the licensees-respondents on such Indian made foreign liquor. A licensee, Jagannath of Middle Point, Port Blair filed a writ petition challenging the aforesaid notification and the notification was held to be invalid as the Chief Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of Andaman and Nicobar Islands rejected the prayer for refund of the duty and the respondents then moved the High Court in writ petitions challenging the legality of the amended provision and packing a writ of mandamus to the appellant to refund the alleged illegal levy collected by the Excise Authorities. The Division Bench of the Calcutta High Court by the impugned Judgment came to Hold that Section (Regn.) 31-A of the Andaman and Nicobar Islands (Amendment) Regulation, 1984 is ultra vires and Sections (Regn.) 6(1) and 6(2) of the Regulation are also invalid. On the question of applicability of the principle of 'unjust enrichment' the High Court came to the conclusion that there is absolutely no materials to show whether the excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistrator in the Andaman and Nicobar Islands Gazette is a pre-condition for making any levy under Section 31-A and the said pre-condition has not been satisfied, Mr Nambiar, the learned senior counsel, did not pursue his argument that the levy in question can be held to be a valid levy as special duty contemplated under Section 31A of the Amended Regulation of 1984. 4.Mr. Nambiar, the learned senior counsel, however, vehemently argued that even if the levy can be held to be not authorised by law but the same having been collected, the licensees are not entitled to refund of the same and the said relief can be rejected by applying the principle of 'unjust enrichment'. In support of his contention he placed reliance on the decision of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les underlying the doctrine of 'unjust enrichment' as culled out from the aforesaid two decisions will have no application to the case in hand, in view of the findings arrived at by the High Court on consideration of the entire materials on record that it is nobody's case that the excise duty was recovered from the purchaser by the wine merchants. Since the burden has not been passed on to the purchaser as found by the High Court and the levy having been held to be unconstitutional, the State would not be entitled to resist the claim of refund by application of doctrine of 'unjust enrichment'. We, therefore, do not find any infirmity with the directions of the High Court to refund the illegal levy collected from the respondents. The appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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