TMI Blog1980 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. The break-up of the price so fixed is not available and therefore it is not possible to ascertain what were the different components of the price fixed by the Union of India for sale to consumers. ( 3. ) For the purpose of Excise Duty, admittedly, the cost of the tins which were used as containers for Vanaspati, the freight charges incurred by the producers and marketing and distribution expenses borne by the producers were added to the cost of the manufactured product, viz., Vanaspati. The cost of the containers, freight charges and marketing and distribution expenses would be post-manufacturing cost and in accordance with the earlier decision of this Court, could not have been included in the price of the manufactured product for the purpose of chargeability of Excise Duty. Consequent upon the decision of this Court in Union of India v. Mansingka Industries Private Limited, 1979 ELT (J 158) = 77 Bombay Law Reporter 663, in which it was held that the cost of freight and cost of containers could not be included in the price of the manufactured articles for the purposes of Excise Duty, the petitioners submitted a fresh price-list on 10th February, 1975 excluding the two comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to them from the customers as a part of the sale price of the manufactured article. ( 6. ) We do not think it necessary to deal at any length with the first two contentions. Having regard to decide in Mansingka's case, Indian Tobacco's case and a large number of like decisions following these two cases, it is now too late to contend that the cost of containers, freight and marketing charges are not post-manufacturing expenses. Having regard to the long line of decisions, we must hold that the charges under these three heads could not have been taken into account for determining the chargeability to Excise Duty. ( 7. ) So far as the contention that the claim for refund is barred by Rule 11 of the Excise Rules, we may refer to a very recent decision of this Court in Associated Bearing Company Limited and another vs. Union of India, Special Civil Application No. 2118 of 1976 decided on 5th March 1980 - 1980 ELT 415, to which one of us was a party. The contention whether a claim for refund on the ground that certain items which were in the nature of postmanufacturing expenses were taken into account for the purposes of chargeability to Excise Duty falls within Rule 11 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the claim of the petitioners was the declaration of the law made by Supreme Court from time to time as well as by this Court in similar claims for refund of Excise Duty said to have been wrongly recovered. Indeed on the authorities and the law which seem to be now well settled, the Excise Authorities have no jurisdiction to take into account anything in the nature of post-manufacturing expenses for the purpose of chargeability to Excise Duty. If this constitutional position is now well established, it is difficult to entertain the argument advanced on behalf of Union of India that a manufacturer of a citizen should be forced to take recourse to a long drawn out trial in the trial Court with the possibility of the decision of the trial Court being challenged in appeals when it is well-known that the proceedings commencing with the suit and the appeals in higher Court taken together take nothing less than ten or twelve years. ( 10. ) The argument on behalf of the Union of India almost comes to this that even though the constitutional position is well established the petitioners should have really gone to a Civil Court where, as it now transpires, when no substantial defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that case that justice did not lie on the side of the company and therefore the High Court should not, in its writ jurisdiction assist the company. Dealing with this contention, the learned judge referred to the well-known proposition that in order to enable the petitioner to obtain a relief from a Court in a writ petition, it was not sufficient that he should make out some statutory right or show that an order passed against him was illegal but he must, in addition, show that justice lies on his side and that by making an order, which is sought from the Court, the Court will be doing justice - a proposition which it is impossible to dispute. It is well established that it is not obligatory on the part of the High Court to interfere in every case under Article 226 and in each case, the High Court has to consider whether it should exercise its descretion in favour of the petitioner who approaches the High Court. 21st June, 1981 ( 12. ) It is no doubt true that in Ogale Glass Works' case the Division Bench declined to grant any relief in respect of amounts recovered prior to December 18, 1972. That was the date on which a representation was made in writing to the Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id under a mistake of fact may ordinarily be recovered back (see Cropus Juris Secundum, Vol. 84, p. 637). Although Section 72 of the Contract Act has been held to cover cases of payment of money under a mistake of law, as the State stands in a peculiar position in respect of taxes paid to it, there are perhaps practical reasons for the law according a different treatment both in the matter of the heads under which they could be recovered and the period of limitation for the recovery. 12. The task of writing legislation to protect the interest of the nation is committed to Parliament and the legislatures of the States. We are referring to this aspect only to alert their attention to the present state of law. These observations were intended to draw the attention of the Government to the state of the law to which the Supreme Court has referred in the earlier paragraph viz., that while in U.S.A. taxes paid voluntarily under the mistake of law with full knowledge cannot be recovered back, there is no such law in India. The observations in paragraphs 11 and 12 have to be read in the context of the earlier observations in paragraph 10 in which the Supreme Court clearly pointed out as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them to resort to the remedy of suits. These observations will make it clear that the ground on which the Supreme Court was not inclined to interfere with the order of the High Court was that it was not proper to promote multiplicity of unnecessary legal proceedings. Cawasji's case is, therefore, not an authority for the proposition that the claim for refund must necessarily be rejected on the ground that an order for refund is likely to result in unjust enrichment. It appears from the judgment of the Supreme Court that the fact that the appellants had not given any reasons as to why that claim was not made in the earlier writ petitions heavily weighed with the Supreme Court when they declined to interfere with the decision of the High Court. We are therefore unable to accept the contention advanced on behalf of the Union of India that the petitioners are not entitled to any refund as the levy has already been passed on to the consumer. ( 15. ) As already pointed out, the matter with regard to the nature of the Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of limitation. We may point out that in a recent decision of the Supreme Court in Madras Port Trust v. Hymanshu International, 1979 Excise Law Times (J306), the inadvisability of government relying on technical pleas has been clearly pointed out in the following observations made by Bhagwati, J. : It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become available. ( 17. ) The second ground is that the law relating to the exclusion of the value of containers particularly came to be settled by the decision of this Court in Mansingka's case which came in September 1974 and the law relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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