9911796707
TMI Blog2001 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... e of prohibition prohibiting the respondents from withholding the amount of Rs. 17 lakhs security of Rs. 10,000/- and from retaining the books of accounts and cash seized on 16-1-96. 2.The ld. Single Judge by judgment and order which is impugned in this appeal directed the Commissioner of Central Excise to refund Rs. 17 lakhs together with interest @ 30% P.A. from the date of seizure till date of payment and also refund the security to the extent of Rs. 10,000/- together with interest @ 12% p.a. from the date of deposit of the said sum. The ld. Single Judge also directed the respondents to pay interest @ 12% P.A. on the sum of Rs. 80,000/-from the date of seizure till the date of refund. The ld. Single Judge also directed that on receipt of the aforesaid amount together with interest the writ petitioners shall keep the sum in a short term fixed deposit account with ANZ Grindlays Bank, Church Lane Branch and the same shall not be appropriate till 31st December, 1999 or until further direction which may pass by the Supreme Court if any action is taken. The Bank concerned shall not allow encashment before December 31, 1199. In the event no action is taken by December 31, 1999 or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Rs. 2 lakhs against the Respondent No. 2 herein..... (iii) I also order recovery of the amount of penalty of Rs. 15 lakhs only and Rs. 2 lakhs only from the seized amount of Rs. 17,80,000/-. The balance amount of Rs. 80,000/- should be refunded to the dealer. (d) Four appeals were preferred against the two orders dated 17-5-97 and 16-5-97 before the Customs, Excise Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta hereinafter referred to as "CEGAT". 16th May, 1997 : ............. Rs. 17 lacs ordered to be adjusted against the penalty of Rs. 17 lacs and the balance amount of Rs. 80,000/- ordered to be refunded to the dealer. (e) By order dated 5-3-1998 dissenting orders were passed by the learned Technical Member and the learned Judicial Member. Learned Judicial Member rejected the four appeals and the learned Technical Member allowed the same. Four appeals were referred to the learned Third Member (Technical) and ultimately by majority order passed on 18-9-1998 all the four appeals were allowed and the impugned orders were set aside. (f) On 2-12-1998 appellant filed applications for reference against the said order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It has further been submitted that in this judgment also the Hon'ble Supreme Court followed the principle of Sugan Mal's case (supra) and observed that writ petition for only refund of money is not maintainable. It(2) has also been submitted by the appellants that under Central Excise Act, Section 11BB, provides for payment of interest for delayed refund of duty which came into force on 26-5-1995 only and in view of the judgment of the Hon'ble Supreme Court and there being no provision for payment of interest for refund of money other than the duty the learned Single Bench should not have awarded any interest. It(3) has been submitted by the respondents in their written submissions and also oral submissions that the submission made on behalf of the appellant that a writ will not lie on the refund of tax is not a sound principle. 6.Dr. Pal appearing for the respondents relied on several decisions of the Hon'ble Supreme Court and submitted that a writ will lie for the refund of tax, which has been illegally recovered. It has also been submitted by Dr. Pal that the interest has been awarded by the learned Single Judge by way of compensation for the unauthorized dealing of mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision reported in AIR 1965 SC 1740, Sugan Mal v. State of Madhya Pradesh Ors. In the said decision, the observation of the Hon'ble Supreme Court which is relevant for the purpose is as follows :- "On the first point, we are of opinion that though the High Court have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue writ of Mandamus directing the state to refund the money is not ordinarily maintainable for the simple reason that a claim for such refund can always be made in the suit against the authority which had illegally collected the money as a tax. We have been referred to case in which orders had been issued directing the state to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under Article 226 simply for the purpose of obtaining refund of money due from the state on account of its having made illegal exactions. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no defences on behalf of authority in so far as the refund of money is concerned inasmuch as when it has been decided by the Central Excise Commission that the seizure of money in the instant case is illegal and no appeal as has been preferred against that order by the authorities concerned or by the department. 11.On the contrary, in the decision reported in AIR 1989 SC 1607, Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani the Hon'ble Supreme Court observed : "The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists Mandamus cannot be denied. It may be pointed out that Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of body affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng ago Dicey wrote : "The law ubi jus ibi remedium, becomes from this point of view something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen...., The Constitution of the United States and the Constitution of the separate States are embodied in written or printed documents, and contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights declared by American Constitutions. The rule of law is as marked a nature of the United States as of England". 13.The same view has been taken in the judgment of the Hon'ble Supreme Court reported in 1988 (33) E.L.T. 249 (S.C.) = AIR 1990 SC 772 (Salonath Tea Co. Ltd. v. Superintendent of Tax Ors.), AIR 1972 SC 1300 (CST v. Auriya Chambers of Commerce), AIR 1991 SC 1676 (Orissa Cement L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit of Mandamus would reach and this is discretionary and in the instant case when admittedly the seizure of money is illegal and when admittedly there is no option but to refund the money and when admittedly the efficacious remedy is writ the appellant cannot challenge the jurisdiction of the ld. Single Judge in exercising his discretion directing the authorities to refund the amount illegally seized. 17.With regard to the second point which is to be decided is whether interest is to be paid when refunding the illegally seized amount, Mr. Roy Chowdhury placed reliance on the case of Union of India v. Orient Enterprises (supra) and submitted that when statute does not provide for any interest, no such interest can be awarded and the ld. Single Judge committed error in awarding the interest. He also submitted that in the present case CEGAT where the only proper authority to decide the question of return refund and also to decide whether any interest is to be paid and since the CEGAT has not allowed any interest the High Court should not have awarded interest. 18.Dr. Pal in his submission has placed reliance on the decision reported in 1994 (2) SCC 240 Union of India v. Justice S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
