(1.) Legal ingenuity knows no bounds. It baffles an ordinary person whether the pleas such as those put forward in the present case could be available at all. The petitioners having got the refund pursuant to the judgment of this Court which was later on reversed by the Supreme Court tries to resist the move of the Excise Department to recover back the amount refunded to it.
(2.) By the judgment dated 25-10-1992 in Writ Petition No.4637 of 1978, this Court directed the refund of excise duty to the predecessor of the petitioner-Company within three months after due determination of the quantum thereof. The refund was ordered on the ground that excess payment was made on a wrong classification. The Union of India went in appeal to the Supreme Court. During the pendency of the appeal, an amount of Rs.18,49,568.00 representing excise duty paid between 1-4-1972 and 3-11-1976 was refunded. The Supreme Court, following the view taken in Mafatlal Industries v. Union of India, 1997 (5) SCC 536, set aside the judgment of the High Court and allowed the appeal on 15-7-1997. As a follow-up to the judgment of the Supreme Court, the 3rd respondent sent a communication dated 19-11-1997 requiring the petitioner to pay back an amount of Rs.18,49,568.00 together with interest. The petitioner protested stating that the demand was barred by limitation prescribed by Section 11 A of the Central Excise Act. The 2nd respondent then sent a detailed communication on 15-12-1997 stating inter alia that the orders rejecting refund applications stood restored as a consequence of the judgment of Supreme Court. The petitioner was therefore required to pay back the amount of Rs.18,49,568.00 within 7 days from the date of receipt of the letter with a threat of coercive action in case of non-payment. This communication has been assailed in this writ petition and a direction is sought to restrain the respondents from recovering the said amount from the petitioners.
(3.) The contention advanced on behalf of the petitioners, put in a nut-shell, is that there is no provision of law under the Central Excise Act to recover the duty refunded to it in accordance with a judgment of Court of law, other than the Section 11-A of the Central Excise Act. If Section 11-A is applied, the time limit of six months prescribed therein precludes the recovery at this distance of time under the Act. Therefore, the Central Government can only have recourse to common law remedy of civil suit in which appropriate defences are open to the petitioner. The learned Counsel argues that if the claim for refund by assessee is governed entirely by the provisions of the Central Excise Act as laid down by the Supreme Court in Collector of C.E., Chandigarh v. M/s. Doaba Co-operative Sugar Mills Ltd., AIR 1988 SC 2052, by parity of reasoning, the claim of the Department to recover the refunded duty, could only be within the four corners of the Act. When the law under which the duty was collected and refunded does not specifically provide for 're-restitution', it is not open to the respondents to take the law into their own hands by resorting to coercive process of recovery. It is then submitted, relying on the Law Lexicon that 're-restitution' in contradiction to 'restitution' is purely discretionary. It is submitted that during the pendency of the appeal in the Supreme Court, the petitioner not having knowledge of the appeal, passed on the benefit of refund to its dealers and therefore, there is no unjust enrichment. It is further submitted that the respondents ought to have sought specific directions of the Supreme Court for the recovery of duty instead of unilaterally starting the recovery proceedings.