TMI Blog1982 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 and for issue of a writ of mandamus directing the respondents to refund to the petitioners a sum of Rs. 49,90,043.01 with interest thereon at 12% per annum from the date thereof till payment. 2. The petitioners are, inter alia, carrying on the business of manufacturing and selling cigarette and smoking tobacco and own and operate five cigarette factories including a cigarette factory at Saharanpur in the State of Uttar Pradesh. The manufacture of cigarette attracts excise duty under the Central Excises and Salt Act, 1944 (for short called the Act). The petitioners' case is this. The petitioners who are manufacturers sell their products to wholesale buyers and/or dealers who in their turn sell to secondary wholesalers. The said secondar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19th February 1972 20th February 1972 to Rs. 26,21,356.16 16 March 1972 Rs. 2,97,876.81 17th March 1972 to 31st January 1973 Rs. 25,41,704.70 1st February 1973 to 28th February 1973Rs. 2,61,024.22 4. After the judgment of the Supreme Court in the case of A.K. Roy and Another v. Voltas Ltd" : A.I.R. 1973 SC 225 = 1977 E.L.T. (J 177), the petitioners made five separate applications for refund of the excess excise duty paid for the clearances in respect of the period September 1, 1970 to February 28, 1973. The petitioners made two applications for refund of Rs. 23,68,686.85 for the period 1st September, 1970 to 28th May, 1971 and for Rs. 26,21,356.16 for the period June 1, 1971 to February 19, 1972 on February 27, 1973. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e misconstruction by the petitioners arose on account of the wrong interpretation placed by the judgments of the High Courts of Calcutta, Mysore and Andhra Pradesh in their decisions reported in A.I.R. 1961 Calcutta 477, A.I.R. 1968 Calcutta 154, A.I.R. 1963 Mysore 212 and A.I.R. 1967 Andhra Pradesh 281, and the true legal position was authoritatively settled by the Supreme Court in Voltas case. This is clear from the impugned order dated December 30, 1975 passed by the Appellate Collector wherein it was held : "I find force in the arguments of the appellants particularly because not only the appellants but even some high courts also had held the view before the Supreme Court judgment in Voltas case that the assessable value under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to the provision of Article 265 of the Constitution which gives the mandate that no tax shall be levied or collected except by authority of law, that there being admittedly an excess collection of import duty, the party who has paid the excess duty is entitled to get a refund of the same and that though the authorities cannot entertain a revision application under Section 27 of the Customs Act, beyond a period of six months from the date of payment, that will not inhibit the court from granting the necessary relief by way of mandamus directing the authorities to refund the duty which was collected without the authority of law. In all those three cases, the Madras High Court granted relief by issuing a writ of mandamus if it was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and others, one of us (Chadha, J.) had held that if the State realises tax or duty in contravention of the law, the court would be fully justified in directing the State to act in accordance with law and to refund the excess amount of tax or duty which it had realised. This was quoted with approval by B.N. Kirpal, J. in "Vazir Sultan Tobacco v. Union of India", 1981 E.L.T. 14 (Delhi). The petitioners who had paid duty of excise in excess are entitled to claim the refund of the same even if the authorities under the Act could not entertain the refund application as the same is alleged to have been filed beyond the period prescribed by the Act and the Rules. The duty of excise can be which is levied in accordance with the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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