DEPUTY COMMISSIONER ANDAMAN DISTRICT PORT BLAIR DEPUTY COMMISSIONER ANDAMAN DISTRICT PORT BLAIR Vs. CONSUMER COOPERATIVE STORES LTD

JUDGEMENT

(1.) In these appeals the Judgment of the Division Bench of Calcutta High Court dated 31st of January, 1994 is under challenge and the question for consideration is whether in view of the Andaman and Nicobar Islands (Amendment) Regulation, 1984 the respondents are entitled to claim refund of the excise duty levied and paid. The further question which arises for consideration is whether by application of the principle of 'unjust enrichment' the said respondents can be denied of getting the refund in question.

(2.) The respondents had obtained licence to vend Indian made foreign liquor on the basis of a public auction. The Chief Commissioner of Andaman and Nicobar Islands issued a notification purporting to be one in exercise of powers conferred under Rule 29 of Andaman Excise Rules, 1934 prescribing the rate of excise duty payable by the licensees-respondents on such Indian made foreign liquor. A licensee, Jagannath of Middle Point, Port Blair filed a writ petition challenging the aforesaid notification and the notification was held to be invalid as the Chief Commissioner had no power to levy the excise duty in question. Against the Judgment of the learned single Judge, an appeal was preferred to the Division Bench but the said appeal was dismissed and the Judgment of the single Judge was confirmed. The Excise Authorities did raise a contention before the Division Bench of the High Court that the licensees have realised the amount from the customers and as such should not get the refund in question but the said contention was negatived by the High Court. After the appeal was dismissed, the amount realised from said licensee Jagannath was refunded. In view of the aforesaid Judgment of the Division Bench of Calcutta High Court the other licensees also applied for refund to the Excise Authorities but as no action was taken thereon, writ petitions were filed. Those writ petitions were disposed of with a direction to the Excise Authorities to pass final orders on the application for refund. The Excise Authorities then took steps for refunding the amount collected after complying with the formalities but before the refund vouchers could be finally signed, a notification was issued on 1st of September, 1984 by the President of India, promulgating the Andaman and Nicobar Islands (Amendment) Regulation 1984, authorising imposition of excise duty w.e.f. 24th of October, 1973 on Indian made foreign liquor notwithstanding any judgment, decree or order of any Court. In view of the aforesaid amendment of the Excise Regulation, the Excise Authorities of Andaman and Nicobar Islands rejected the prayer for refund of the duty and the respondents then moved the High Court in writ petitions challenging the legality of the amended provision and seeking a writ of mandamus to the appellant to refund the alleged illegal levy collected by the Excise Authorities. The Division Bench of the Calcutta High Court by the impugned Judgment came to hold that Section (Regn.) 31-A of the Andaman and Nicobar Islands (Amendment) Regulation, 1984 is ultra vires and Sections (Regn.) 6(1) and 6(2) of the Regulation are also invalid. On the question of applicability of the principle of 'unjust enrichment' the High Court came to the conclusion that there is absolutely no materials to show whether the excise duty that was paid in advance was consumed by the dealers by their margin of profits or not and it is nobody's case that the excise duty was recovered as such from the purchaser by the wine merchants. Consequently, the principle of 'unjust enrichment' has no application. With these conclusions, writ applications were allowed with the direction that the amount collected as excise duty from the licensees be refunded.

(3.) Mr. Nambiar, the learned senior counsel, appearing for the appellants contended that in view of Section (Regn.) 31-A of the Amendment Regulation, 1984, the excise duty which have been collected can be held to be a special duty under the amended provisions and in view of the non obstante clause in Section 6 of the Amendment Regulation, notwithstanding the earlier judgment of the High Court striking down the notification dated 24th of October, 1973, the duty which had been collected can be held to be a valid levy as special duty under Section 31-A and, therefore, the Excise Authorities had rightly refused the refund application and High Court committed error in allowing the Writ Petition. Though the learned counsel had raised the aforesaid contention while beginning his arguments but later on did not pursue the same being faced with the problem that subsequent to insertion of Section 31-A, no notification has been issued by the Administrator in the Andaman and Nicobar Islands Gazette, specifying the levy of special duty. Since issuance of a notification by the Administrator in the Andaman and Nicobar Islands Gazette is a pre-condition for making any levy under Section 31-A and the said pre-condition has not been satisfied, Mr. Nambiar, the learned senior counsel, did not pursue his argument that the levy in question can be held to be a valid levy as special duty contemplated under Section 31-A of the Amended Regulation of 1984.