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1 - 10 of 24 (0.35 seconds)State Of Of Madhya Pradesh vs Vyankatlal & Anr on 28 March, 1985
15. In our opinion there is no reason why the principles of "unjust enrichment" by the assessee cannot be extended in the case of Excise duty. Excise duty is an indirect tax and generally it is passed to the buyer. The law is well settled that in a case where collection of duty or tax is ultimately found to be illegal and without jurisdiction, the Government cannot hold on to the same and the Government is bound to refund the same. Otherwise it would amount to "unjust enrichment" by the Deptt. However, the principles of "unjust enrichment" is to be applied not only against the Deptt. only but against the assessee also e.g. where though assessee had paid the fee or duties initially, but he had passed the burden to his purchaser and he himself has not suffered any loss or prejudice in fact. As decided in Dal Mill's case (ibid) - , the course of action taken wherein, has been affirmed by the recent Supreme Court decision in the case of State of M.P. v. Vyankatlal (ibid) - , merely because the assessee has paid the money, that by itself is no ground for directing payment to the assessee, if in fact the assessee has not paid out of his own pocket but ultimately passed it on to its purchaser. In the present case, as we have already pointed out, in the affidavit-in-reply it is not the case of the assessee that they have not passed the burden to its purchaser. On the other hand, they have stated that in case refund being made, they would ultimately refund it back to their purchasers. No such absolute contention was raised therein as sought to be raised before us now by Mr. Ginwalla which in our opinion is inconsistent with the stand taken in the affidavit by his clients.
Khardah Company Ltd. vs Union Of India (Uoi) on 1 October, 1980
17. So far as the decision in Khardah Co. v. Union of India (ibid) [1983 ELT 2159], is concerned, it may be pointed out that this case did not and could not consider the decision of the Supreme Court in the case of State of Madhya Pradesh v. Vyankatlal and Anr. - because this Division Bench judgment of this Court was delivered on 1st of October, 1980 i.e. much earlier to the Supreme Court judgment which was delivered in 1985.
The Central Excise Act, 1944
Union Carbide Co. Ltd. vs Assistant Collector Of Central Excise ... on 10 May, 1976
17. So far as Union Carbide case (ibid) - [1978 E.L.T. (J 180)], is concerned such judgment was delivered on 10th May, 1976, that is, long before the two Supreme Court judgments referred to above and obviously the law laid down therein by Supreme Court could not be taken into consideration by the learned Single Judge.
I.T.C. Limited vs M.K. Chipkar And Others on 9 April, 1985
16. The Bombay decision in I.T.C. case (ibid) - , is not binding on us. In any event there is nothing in the said judgment which prevents us from passing the order as we ultimately propose to pass having regard to the decisions of the Supreme Court referred to above and the averment made in the affidavit-in-reply by the assessee referred to above. We ought to point out that this judgment of the learned third Judge was delivered on 9th April, 1985.
Shiv Shanker Dal Mills Etc. Etc vs State Of Haryana & Ors. Etc on 9 November, 1979
However, it is to be pointed out that this Division Bench judgment did not also consider the case of Shiv Shankar Dal Mills v. State of Haryana wherein the judgment was delivered on 9th November, 1979. The reason may be that by that time it was not reported in any Journal and even if reported the learned Advocates appearing did not draw the attention of the learned Budge to the same.
Kewal Krishan Puri & Anr vs State Of Punjab & Others on 4 May, 1979
9. In the case of Shiv Shankar Dal Mills Ltd., etc. v. State of Haryana and Ors. Reported in the writ petitioners (the appellants) had paid market fees at the increased rate of 3 per cent raised from the original - 2 per cent under Haryana Act, 22 of 1977. Many dealers challenged the levies as nconstitutional and the Supreme Court in a series of appeals, namely, C.A. No. 1083 of 1977 etc. Kewal Krishna v. State of Punjab (decided on 4th May, 1979) , ruled that the excess of 1 per cent over the original rate of 2 per cent was ultra vires. It was held that this cast a consequential liability on the market committed to refund the illegal portion. The petitioners who had, under mistake, paid larger sums which, after the decision of the Supreme Court holding the levy illegal have become refundable, demanded a direction to that effect to the market committees concerned. The Supreme Court held that where public bodies under colour of public laws recovered people's money later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. The Supreme Court further held that it was not palatable to our jurisprudence to turn down the* prayer for high prerogative writs, on the negative plea of 'alternative remedy' since the root principle of law married to justice is ubi jus ibi remedium. However the Supreme Court pointed out as follows :-
Ogale Glass Works Ltd. vs The Union Of India on 14 July, 1975
"Before we conclude we have to dispose of an incidental objection to the claim of refund realised by Mr. Banerjee. According to Mr. Banerjee the petitioners having passed on the incidence of enhanced assessment of the Excise duty to their customers the refund, if ordered, would only result in unjust enrichment of the petitioners and hence such an order should not be made. Reliance is placed by Mr. Banerjee on a Bench decision of the Bombay High Court in the case of Ogale Glass Works Ltd. v. Union of India and Ors - 1979 E.L.T. (J 468) and a single Bench decision of this Court in the case of Hindusthan Pilkington Glass Works v. Central Excises - 1977 (2) C.L.J. 408.
Hindustan Pilkington Glass Works ... vs Superintendent Central Excise, ... on 27 September, 1977
"Before we conclude we have to dispose of an incidental objection to the claim of refund realised by Mr. Banerjee. According to Mr. Banerjee the petitioners having passed on the incidence of enhanced assessment of the Excise duty to their customers the refund, if ordered, would only result in unjust enrichment of the petitioners and hence such an order should not be made. Reliance is placed by Mr. Banerjee on a Bench decision of the Bombay High Court in the case of Ogale Glass Works Ltd. v. Union of India and Ors - 1979 E.L.T. (J 468) and a single Bench decision of this Court in the case of Hindusthan Pilkington Glass Works v. Central Excises - 1977 (2) C.L.J. 408.