TMI Blog1999 (7) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court directed the refund of excise duty to the predecessor of the petitioner-Company within three months after due determination of the quantum thereof. The refund was ordered on the ground that excess payment was made on a wrong classification. The Union of India went in appeal to the Supreme Court. During the pendency of the appeal, an amount of Rs. 18,49,568/- representing excise duty paid between 1-4-1972 and 3-11-1976 was refunded. The Supreme Court, following the view taken in Mafatlal Industries v. Union of India (1) 1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536 set aside the judgment of the High Court and allowed the appeal on 15-7-1997. As a follow-up to the judgment of the Supreme Court, the 3rd respondent sent a communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down by the Supreme Court in Collector of C.E., Chahdigarh v. M/s Doaba Cooperative Sugar Mills Ltd. - 1988 (37) E.L.T. 478 (S.C.) = AIR 1988 S.C. 2052 by parity of reasoning, the claim of the Department to recover the refunded duty could only be within the four corners of the Act. When the law under which the duty was collected and refunded does not specifically provide for 're-restitution', it is not open to the respondents to take the law into their own hands by resorting to coercive process of recovery. It is then submitted, relying on the Law Lexicon that 're-restitution' in contra-distinction to 'restitution' is purely discretionary. It is submitted that during the pendency of the appeal in the Supreme Court, the petitioner not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r back the money shall not make any difference. The plain and logical consequence of the judgment setting aside the judgment of the High Court which ordered refund is to restore status quo ante and imposing a duty and obligation on the assessee who got the refund under the overruled judgment to pay back that amount. In the absence of specific order placing restrictions or conditions on the entitlement to recover back the amount refunded during the pendency of appeal, the unsuccessful assessee cannot approach this Court to scuttle the recovery instead of discharging its obligation voluntarily. The petitioner has no legal or moral right to approach this Court under Article 226 raising hyper-technical grounds to wriggle out of the situation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar. The Supreme Court observed: "But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for the recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be called upon to pay back that amount to the Union of India. According to the learned Counsel, the petitioner will suffer irreparable prejudice from the impugned action of the respondents. Attention was drawn to certain observations of I.T. Tribunal while disposing of the appeal for the year 1982-83 to substantiate that the benefit of refund which the petitioner obtained was passed on to the dealers. We cannot accept this contention for more than one reason. If what the petitioner states is the real state of affairs, that fact should have been brought to the notice of their Lordships of the Supreme Court and appropriate direction should have been sought as regards the recovery of the refunded amount which was the subject-matter of the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only supporting material relied on before us is the order of the I.T. Tribunal. We do not therefore see any special grounds to extricate the petitioner from the operation of the rule of restitution. In fact, in the light of our discussion at the outset, there is no need to test the petitioner's plea on the anvil of restitution doctrine. As observed supra, when once the judgment of the Apex Court creates by necessary implication an obligation on the part of the petitioner to pay back the duty refunded to it pursuant to the overruled judgment of the High Court, this Court will stay off its hands and refrain from exercising its extraordinary discretionary jurisdiction under Art. 226 so as to give a handle to the petitioner to disown or dilute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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