TMI Blog1987 (2) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected duties on the goods manufactured by it under tariff Item l74 and such duties were paid by the petitioner under protest. 2. The petitioner company preferred appeals to the appellate authorities. The appellate proceedings contained for a long time. The matters went upto the Supreme Court. The Supreme Court remanded the cases back to the Collector for deciding afresh on 3rd May 1968. The Appellate Collector of Central Excise decided 32 appeals pending before him for different periods and against different orders by an order dated 30th November, 1973 in favour of the petitioner company. These appellate orders of the Appellate Collector was reviewed by the Government of India and by an order dated 30th September, 1976 the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any. If any customer of the company from whom excise duty had been collected came with a claim of refund on the ground of any duty unlawfully collected by the company, a question of refund might have arisen. But in this case, if any refund is granted to the company, it will accrue to them "as fortuitous benefit because this benefit cannot be passed on to the actual consumers of the goods who have already accepted the burden of taxation." 7. The claim for refund, therefore, was rejected by the Assistant Collector, Central Excise and Customs, Sambalpure. 8. The Appellate Collector of Central Excise in both the orders dated 9th June, 1980 and 10th July, 1980 had set aside the orders under appeal and directed that 'consequential reliefs be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question in the appeal was whether the classification was wrongly made and duty was wrongly realised from the petitioner company. If the classification was wrong and the duty was unlawfully realised, the respondents had to refund the duty which was unlawfully realised. The Excise Authority cannot be permitted to retain any amount of tax which has been unlawfully gathered from a tax payer. 10. There is also another aspect of the case. It has been argued that if the refund application is allowed, there will be unlawful enrichment on the part of the petitioner company. I fail to appreciate this argument. It excise duty has been unlawfully realised from the petitioner and if the petitioner paid the duty under protest, the petitioner is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation alone ensures the atmosphere of tax compliance." 12. A similar view was taken by a Division Bench of this Court in the case of Khardah Company Limited, v. Union of India, 1983 E.L.T. 2159 where it was held that where excise duty was collected under compulsion, the assessee had a right to get the refund of duty after the appellate authority had held that excessive realisation has been made. It was observed in that case that the claim of refund of any amount realised under any authority of law was enforceable in law unless it was barred by any specific statutory provisions. 13. In the instant case, excise duty was realised from the company under compulsion of law by the excise authority. The Appellate authority has decided that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders dated January 30, 1981. 16. Since I have held in this case that the petitioner is entitled to succeed and the amount of refund claimed by the petitioner has already been paid by the Central Excise authority, there will be an order directing the Registrar, Appellate Side, to return the bank guarantee furnished by the petitioner. The petitioner is absolved from its undertaking to keep the bank guarantee renewed. 17. The Rule is disposed of finally as above. 18. There will be no order as to costs. 19. This order will not prevent the Department concerned from realising any tax in case the Department succeeds in the appeals that are pending in the Tribunal or in any other or further proceedings in connection with this case. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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