TMI Blog2001 (8) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... came refundable on account of lesser rate of excise duty payable on a car registered for use solely as a taxi, for which some documents were required to be submitted by the manufacturer to the Excise authorities. Pursuant to a letter dated 26th March, 1992, received from the dealer, the petitioner claims to have submitted the requisite documents. Since the petitioner did not receive any communication from the dealer or the manufacturer of the vehicle namely, M/s. Maruti Udyog Limited (for short 'Maruti'), respondent No. 3 herein, she wrote various letters to them for the refund of the excess excise duty deposited by her, but in vain. 3.Having failed to get any response from Maruti or the dealer, the petitioner filed a complaint with the Monopolies and Restricted Trade Practices Commission (for short 'the Commission') praying for a direction to the dealer to refund the excise duty. On notice being issued by the Commission to the dealer, the dealer vide their letters dated 17th August, 1993 and 11th September, 1993, asked the petitioner to furnish certain additional documents to enable them to refund the excise duty. These were submitted on 18th September, 1993. In their reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amenable to writ jurisdiction being not a State within the meaning of Article 12 of the Constitution of India. 6.During the pendency of the petition, additional affidavits have been filed on behalf of the respondents. In the additional affidavit filed on behalf of the dealer it is now revealed that Maruti, vide letter dated 8th September, 1993, had informed the dealer about the Excise Department condoning the delay in submitting post-registration documents by the petitioner and 14 other persons and in response thereto the dealer, vide their letter dated 13th January, 1994 to Maruti, had pointed out that though they had already submitted registration and permit papers of the petitioner vide their letter dated 20th October, 1992, they were "once again" submitting the requisite documents. Similarly, the Excise authorities in their additional affidavit, departing from their earlier stand, have now admitted that consequent upon the grant of extension for submitting the documents, Maruti had in fact filed a common refund application dated 2nd September, 1993 in 27 cases, which included petitioner's claim for refund, but the claim was rejected not on merits but as barred by limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specified in the corresponding entry in column (4) of the said Table, subject to the conditions, if any, laid down in the corresponding entry in column (5) thereof. 87.03 Saloon cars 30% ADV If :- an officer not below the rank of an Assistant Collector of Central Excise (hereinafter referred to as the said officer) is satisfied that such salon cars are required for use solely as taxis; and the manufacturer furnishes to the said officer a certificate from an officer authorised by the concerned State Transport Authority in this behalf within three months of the date of clearance of the saloon car by the manufacturer after payment of duty or such extended period as the said officer may allow , to the effect that each such saloon car has been registered for use solely as taxi." (Emphasis added) The notification stipulates payment of concessional rate of duty on saloon cars required to be used solely as taxi subject to the fulfilment of twin conditions, namely: (i) satisfaction of the concerned officer of the Central Excise Department that the car is required for use solely as a taxi and (ii) the manufacturer furnishing to the said of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deniably charged by the dealer from the petitioner. The next question is with whom is the said amount, refundable in terms of the aforesaid notification, now lying - Whether with the Excise department or with Maruti, to whom the dealer had admittedly paid the entire amount collected from the petitioner. Each of them points the accusing finger on the other. 11.In this context, it would be useful to refer to some correspondence exchanged between the Excise authorities and Maruti. It appears that some time in the year 1996, the Assistant Collector, Central Excise Gurgaon had issued a circular (CE-V(87)/30//70/E/92/9112) to Maruti directing them not to collect additional 30 per cent Excise duty from the buyers directly or through its dealer, this being in clear contravention of Section 11B of the Act. Maruti was advised that any amount purportedly collected as duty of excise from the buyers should be deposited with the Central Government. Simultaneously, in response to petitioner's legal notice on 27th August, 1996, the Assistant Commissioner informed the counsel for the petitioner that the excess amount of excise duty, collected from her had been retained by Maruti and they had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the petitioner and other like cases are concerned, their claim has been rejected only on the ground that they have failed to submit certain documents and not on the ground that they have not paid excess Excise duty. In this view of the matter, we are convinced, that the excise duty collected from the petitioner had been credited to Excise department's account. 14.In the backdrop of these undisputed facts, the question that falls for consideration here is whether in exercise of writ jurisdiction the Excise Department should be directed to refund the excess amount of duty, recovered from the petitioner and credited to their account. 15.It is true that a petition under Article 226 of the Constitution of India, solely praying for issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected as tax is not ordinarily maintainable primarily for the reason that the normal remedy for such a claim is by way of a suit to enable the State to raise all possible defenses to the claim, which, in most cases, cannot appropriately be considered in writ jurisdiction (See: Suganmal v. State of M.P. Ors. - AIR 1965 SC 1740). But it is well set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of the accepted position that the petitioner has in fact paid the excess amount of Excise duty and has furnished the documents, as demanded, it would be travesty of justice to relegate her now to a civil suit or to direct her to challenge the adjudication orders passed by the Assistant Commissioner Excise, particularly when she was not a party to the adjudication proceedings. The petitioner cannot be made to suffer on account of some confusion at respondents' ends. Admittedly, excess Excise duty had been charged from the petitioner; an application for refund of differential duty had been made on her behalf by Maruti and requisite documents in terms of aforenoted notification had been submitted by her to the dealer who in turn claims to have forwarded the same to Maruti and Maruti has submitted the same to the Excise authorities. Under these circumstances, we feel that the Excise authorities have no jurisdiction to withhold the refund of excess Excise duty collected from the petitioner by raising technical objections to the maintainability of the writ petition, we would, therefore, direct respondent No-2/Excise authorities to verify its PLA account in the light of Maruti's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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