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TMI Blog1997 (9) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... any was to pay the excise duty. In terms of the Notification No. 201/79, issued by the Central Govt., the excise duty was paid by the respondent Company on hardened rice bran oil under Tariff Item 68 at the time of its clearance. After the receipt of the raw material by the appellant Company, the Central Govt. used to refund the element of excise duty keeping in view the finished goods manufactured by the appellant Company and the appellant used to return the entire duty to the respondent Company. In this manner the liability of the respondent Company to pay the excise duty on hardened rice bran oil was nil. Notwithstanding that the respondent Company raised a dispute regarding the classification of hardened rice bran oil. It pleaded that the goods were classifiable under Tariff Item No. 12 and not under Tariff Item No. 68. At one stage it had raised protest against the payment of excise duty under Tariff Item No. 68 but vide letter dated 29-3-1984 written to the Superintendent, Central Excise, Range-II, Ludhiana. The respondent Company withdrew its protest. The dispute relating to classification of the goods came to be finally resolved by the Customs, Excise and Gold (Control) App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn, got it back from the Department by way of credit under Notification No. 201/79-C.E., dated 4-6-1979, as amended. Thus, in essence, the Department had already refunded the amount of duty collected by it earlier. If at this stage, the appellants are again given the refund, the Department would be refunding the amount second time, an unacceptable proposition. In the circumstances, the Lower Authority has correctly rejected the refund claim." 4.The respondent Company challenged the order of the Assistant Collector in C.W.P. No. 3120/1985. After its appeal was rejected by the Central Excise (Appeals) respondent No. 5, the respondent Company amended the writ petition and challenged the legality of the appellate order as well. The appellant Company which was likely to be affected by the decision of the writ petition sought its impleadment as party respondent. The learned Single Judge rejected its application. However, on appeal, the Supreme Court reversed that order and directed the High Court to hear the appellant Company as a party respondent. 5.By the impugned judgment the learned Single Judge has ordered the refund of Rs. 1.31 crores to the respondent Company. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Madras and Others - 1981 (8) E.L.T. 194; 15. Prem Cables P. Ltd. v. Assistant Collector Customs - 1981 (8) E.L.T. 440; 16. Assistant Collector of Customs, Madras and Others v. Prem Raj Ganpat Raj Co. (Pvt.) Ltd. - 1978 (2) E.L.T. (J 630); 17. Wazir Sultan Tobacco Co. Ltd. v. Union of India and Others - 1981 (8) E.L.T. 140; 18. Hyderabad Asbestos Cement Products Limited v. State of Andhra Pradesh - 24 STC 487; 19. Kesho Ram Cement, Basantnagar v. Union of India - 1982 (10) E.L.T. 214; 20. Calcutta Paper Mfg. Co. Ltd. v. CEGAT - 1986 (25) E.L.T. 939 (Cal.); 21. Bermalt Private Ltd., Gurgaon v. Union of India - 1986 (23) E.L.T. 411 (Del.); 22. Rapidur (India) Ltd. v. Union of India and Others - 1987 (27) E.L.T. 222 (Bom.) etc. It may have been necessary for us to analyse these decisions in detail, but in view of the recent judgment of a 9-Judge Bench in Mafatlal Industries etc. etc. v. Union of India etc. etc., 1997 (89) E.L.T. 247 (S.C.) = JT 1996 (11) SC 283, it is not necessary to do so. In this judgment, the Apex Court has held that the decision of the Constitution Bench in Sales Tax Officer, Banaras v. Kanhaiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that the amount is retained by the State, i.e. by the people. There is no immorality or impropriety involved in such a proposition. (iv) xx xx xx xx xx xx xx xx xx xx xx xx xx (v) xx xx xx xx xx xx xx xx xx xx xx xx xx (vi) Section 72 of the Contract Act is based upon and incorporates a rule of equity. In such a situation, equitable considerations cannot be ruled out while applying the said provision. (vii) xx xx xx xx xx xx xx xx xx xx xx xx xx (viii) The decision of this Court in Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf, (1995 SCR 1350) must he held to have been wrongly decided insofar as it lays down propositions contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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