TMI Blog1991 (12) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... of 67% man-made fibre and 33% cotton fibre in the year 1966. The department levied excise duty considering that the product was falling under Tariff Item No. 18 which pertained to man-made fabrics, filament yarn and cellulosic spun yarn. According to the petitioner company, the blended yarn manufactured by it would not fall either in Tariff Item No. 18 which refers to man-made fabrics, filament yarn and cellulosic spun yarn or in Tariff Item No. 18A which refers to cotton yarn. 2. The First Schedule to the Act was amended by Finance Act of 1972 when Tariff Item No. 18E was introduced. The petitioner contends that it came to know about the decision in Special Civil Application No. 1058 of 1972 filed by the Ahmedabad Manufacturing and Calic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge to the constitutional validity of Section 11B of the Act cannot be sustained. 5. As far as the question of exercise of power under Article 226 of the Constitution of India is concerned the power cannot be exercised for the simple reason that in the instant case, the petitioner has not even made out a case for entitlement to the refund. As held by this Court in the case of Dhangadhra Municipality v. Dhangadhra Chemical Works - 29 (1) G.L.R. page 388 and in the case of Union of India v. M/s. Wood Papers Ltd. 1991 (53) E.L.T. 189 (Guj.) = 30 (2) G.L.R. page 1323, for claiming restitution the petitioner/plaintiff is required to prove the following three ingredients : (1) that the amount was paid under a mistake to the defendant and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition that the petitioner has suffered legal injury or has been prejudiced on account of the payment of duty under the mistake of law. Thus it is not only account of the equitable doctrine of unjust enrichment that the petitioner may be denied the relief. But it is also on account of the failure to fulfil the conditions to succeed while making claim under Section 72 of the Contract Act. For the aforesaid reasons, the claim for refund cannot be granted and the petition is required to be rejected. 6. Even assuming for a moment that the petitioner's case is required to be considered on the basis that the petitioner has been able to prove all the ingredients of Section 72 of the Contract Act, then also, it would not be proper for this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has often arisen whether a petitioner's prayer for refund of taxes collected over an indefinite period of years should be granted once the levy is found to be illegal. To answer the question in the affirmative would result in discrimination between persons based on their choice of the forum for relief, a classification which, prima facie, is too fragile to be considered a relevant criterion for the resulting discrimination. This is one of the reasons why there has been an understandable hesitation on the part of Courts in answering the above question in the affirmative." 7. In above view of the matter, on each of the grounds stated above it would not be proper to grant relief under Article 226 of the Constitution of India and direct t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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