Jharkhand High Court

Spencer Distilleries And ... vs The State Of Jharkhand Through ... on 7 April, 2022

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(C) No. 1689 of 2013
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Spencer Distilleries and Breweries (Pvt. Ltd.), a Private Limited Company having its registered office at Hinoo Main Road, P.S. Doranda, District - Ranchi through its Director, Manisha Sahay W/O Ajay Sinha, Resident of Sushila Niwas, Hinoo, Main Road, P.S. Doranda, District-Ranchi.

.... ... Petitioner Versus

1.The State of Jharkhand through Secretary, Excise Department, Govt. of Jharkhand, Ranchi.

2.Commissioner Excise, Jharkhand Town Administration Building, P.O. & P.S. Dhurwa, District-Ranchi.

3.Deputy Commissioner, Ranchi near Kutchery Chowk, P.O.-G.P.O., P.S. Kotwali, District-Ranchi.

4.Assistant Commissioner of Excise, Ranchi, near Kutchery Chowk, P.O.-G.P.O., P.S. Kotwali, District-Ranchi.

.... Respondents

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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate Mr. Shekhar Sinha, Advocate For the Respondents : Mr. P.A.S. Pati, S.C IV

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Order No. 9/Dated 7th April, 2022

The instant writ petition, under Article 226 of the

Constitution of India, has been filed seeking following

reliefs:

(I).For issuance of writ of certiorari for quashing the

order contained in Memo No. 93 dated 15.01.2013 issued

by Secretary-cum-Commissioner, Excise and Prohibition

Department, Govt. of Jharkhand whereby and

whereunder pursuant to the order dated 03.10.2012

passed in W.P.C No. 5527/07, the claim of the petitioner

has been rejected for refund of Rs. 8,69,035/- along with

statutory interest deposited by the petitioner towards

export pass fee on the ground that the petitioner suo

motu deposited the said amount for furthering his

businesses interests, and as such the same cannot be

refunded to him;

(II).For a direction on the Respondents to make a refund

of Rs. 8,69,035/- deposited by the petitioner along with

statutory interest towards export pass fee for export of

beer in view of direction contained in letter no. 280 dated

22.02.2006 (since quashed vide order dt. 03.10.2012

passed in W.P.C. No. 5527/2007).

2. The brief facts of the case, as per the pleadings

made in the writ petition, which requires to be enumerated

reads under as:

Petitioner is a private limited company carrying on

the business in the manufacture, brewing and sale of beer

and for that purpose he had obtained four licences in the

prescribed form i.e., (i).licence in Form 18 to work a

brewery; (ii).licence in Form 19B to deposit or keep beer

under bond in a warehouse authorized by the Excise

Commissioner; (iii). licence in Form 19C for sale of beer to

other whole sellers; and (iv).license in Form 20 to bottle

beer for the purpose of sale.

It is the contention of the writ petitioner that under

the rules framed in exercise of power conferred upon the

State Government under Rule 89 of the Bihar Excise Act,

1915 (hereinafter referred to as 'Act, 1915'), the State

Government provides requirement of holding license for

sale of foreign liquor and rule 13 thereof deals with

preparation of passes for the export of foreign liquor.

It is further case of the writ petitioner that under

Rule 10 of the Act, 1915 read with Order 11(2) contained in

Government Notification No. 470-F dated 15.01.1919 the

respondents concerned are empowered to grant petitioner

permission to export beer to other states of India as

according to petitioner the respondent-authority has

himself admitted the same.

The respondents came up with letter as contained

in Memo No. 280 dated 22.02.2006, which is alleged to be

issued on the basis of notification no. 470-F dated

15.01.1919, whereby it was directed to realize export pass

fee from the petitioner for the export of beer at the same

rate as has been prescribed for export of foreign liquor

other than beer. However, in terms of letter dated

22.02.2006, the petitioner deposited Rs. 8.69,035/-

towards export pass under mistake of law, as according to

petitioner that under relevant provision of Rule 106 A of the

Act, 1915 and the notification, only India made Foreign

liquor being exported outside the state are required to be

accompanied with export pass fee as prescribed rate.

The writ petitioner being aggrieved by the said

order submitted representations, objecting that no export

fee on beer is to be levied within the State of Jharkhand in

absence of any rule, which did not evoke any response.

However, the respondents came up with departmental

resolution no. 380 dated 21.02.2004 whereby the import

and export fee was stratified.

Therefore, writ petition being W.P.(C) No. 5527 of

2007 was filed wherein, this Court after hearing the parties,

quashed the decision as contained in letter dated

22.02.2006 vide order 03.10.2012 and remanded the

matter to the Excise Commissioner-cum-Secretary,

Department of Excise & Prohibition, Government of

Jharkhand to consider the case of the petitioner afresh, for

refund of the export pass fee deposited for export of beer on

prior direction as contained in letter dated 22.02.2006, in

terms of the Act and Rule and relevant

notifications/resolutions by passing reasoned and speaking

order within a period of 16 weeks. It was further directed

that if the amount of export pass fee deposited by the

petitioner is found to be wrongly realized the same should

be refunded to the petitioner with statutory interest.

In terms of the aforesaid order, the petitioner

submitted representation before the concerned respondent-

authority, which was rejected vide memo no. 93 dated

15.01.2013, by which, the claim of the petitioner for refund

of Rs. 8,69,035/- was rejected on the ground that petitioner

suo motu deposited the said amount for furthering his

business interests, and as such the same cannot be

refunded to him.

The writ petitioner, being aggrieved with order dated

15.01.2013 is before this Court invoking writ jurisdiction of

this Court conferred under Article 226 of the Constitution

of India on the ground that the respondents are liable to

refund the export pass fee paid by the petitioner under the

mistake of law. Further ground has been taken that the

action of the respondents in not refunding the export pass

fee paid by the petitioner is arbitrary, illegal and

unjustified. It has further been pleaded that the

respondents-authorities while considering the case of the

writ petitioner afresh on being remanded by this Court vide

order dated 03.10.2012 in W.P.(C) No. 5527 of 2007 cannot

be allowed to reject the claim of the writ petitioner for

refund of the amount to the tune of Rs. 8,69,035/- merely

on the ground that the same has been deposited suo motu

by the petitioner. According to the writ petitioner if any

amount has been deposited even on mistake by the

petitioner and if there is no authority of law to retain the

said amount, it is bounden duty of the respondents-

authorities to refund the same.

3. Mr. P.P. N. Roy, learned senior counsel being

assisted by Mr. Shekhar Sinha, learned counsel for the

petitioner has submitted that the action of the State

authorities in not refunding the claim of the petitioner is

highly arbitrary and illegal, reason being that, without any

authority of law even if any amount has been paid that

cannot be retained by the State authority. It has further

been argued that the contention as has been raised on

behalf of State about applicability of Government

Notification No. 470-F dated 15.01.1919 the same has been

taken into consideration by this Court in the earlier round

of litigation i.e. in W.P.(C) No. 5527 of 2007 wherein this

Court has discarded the aforesaid plea by holding that on

the basis of said notification i.e., Government Notification

No. 470-F dated 15.01.1919 the amount cannot be allowed

to be retained if law does not permit to do so. But, again

the State relying upon the same notification has rejected

the claim which is nothing but an effort to sit over the order

passed by this Court.

It has further been argued that so far as it relates to

principle of unjust enrichment, as has been raised on

behalf of State-respondent, the same will not be applicable,

reason being that, the question of unjust enrichment would

only come into play if the State has got authority to retain

the amount. Herein, admittedly no statute under Excise

Act, 1915 confers such power to retain the said amount

and if there is no authority to retain the said amount the

same is required to be refunded forthwith by the State

authority.

4. Per contra, Mr. P.A.S. Pati, learned S.C. IV

appearing for the State-respondent has submitted that even

accepting about non-applicability of Government

Notification No. 470-F dated 15.01.1919 then also on the

principle of unjust enrichment, the amount, which has

been deposited suo motu by the writ petitioner, cannot be

allowed to be refunded, reason being that, said amount has

already been shifted upon the consumer and once the

incidence has been shifted to the consumer it cannot be

said that the petitioner is at loss in any way and if the

amount will be refunded the same will having double

benefit to the petitioner. Therefore, the principle of unjust

enrichment will be applicable.

Learned counsel, in order to buttress his argument,

relied upon the judgment rendered in MafatLal Industries

Ltd & Ors Vs. Union of India & Ors [(1997) 5 SCC 536].

5. We have heard learned counsel for the parties,

perused the document available on record as also the

impugned order passed by the administrative authorities.

6. Admitted fact herein is that the writ petitioner deals

during the relevant time with the business of brewing and

sale of beer and for that purpose he had obtained four

licences i.e., licence in Form 18 to work a brewery, licence

in Form 19B to deposit or keep beer under bond in a

warehouse authorized by the Excise Commissioner, licence

in Form 19C for sale of beer to other whole sellers and

license in Form 20 to bottle beer for the purpose of sale.

The respondents vide letter as contained in Memo

No. 280 dated 22.02.2006 directed to pay export pass fee

for the export of beer at the same rate as has been

prescribed for export of foreign liquor other than beer. In

terms thereof, the petitioner deposited Rs. 8,69,035/-

towards export pass which according to him was deposited

under mistake of law, as according to petitioner under

relevant provision of Rule 106A of the Act, 1915 and the

notification, only India made Foreign liquor being exported

outside the state are required to be accompanied with

export pass fee as prescribed rate.

The writ petitioner, being aggrieved with the said

action of the State authority, as has been directed to make

payment of export pass fee vide decision as contained in

memo dated 22.02.2006, approached this Court by filing

writ petition being W.P. (C) No. 5527 of 2007. The Co-

ordinate learned Single Bench of this Court disposed of writ

petition vide order dated 03.10.2012 and set aside letter no.

280 dated 22.02.2006 and remanded the matter to

consider it afresh by passing following order:

In the circumstances, letter no. 280 dated 22.02.2006 contained in Annexure-3, cannot be sustained and it is accordingly, quashed.

In the circumstances, the matter is remanded back to respondent no. 2, the Excise Commissioner-cum-Secretary, Department of Excise & Prohibition, Government of Jharkhand, Ranchi to consider the case of the petitioner for refund of the export pass fee deposited for export of beer on prior direction contained in letter dated 22.02.2006 (Annexure

3). The respondent no. 2 shall consider the same afresh in terms of the Act and Rule and the relevant notifications/resolutions by passing a reasoned and speaking order within a period of 16 weeks in accordance with law after the receipt/production of a copy of this order and the

same shall be communicated to the petitioner. If the amount of export pass fee deposited by the petitioner is found to be wrongly realized, the same should be refunded to the petitioner with statutory interest.

The writ petition is disposed of in the aforesaid terms."

In terms of the aforesaid order, the respondents-

authorities had taken up the matter and rejected the

claim of the petitioner on the ground that the amount

which was deposited by the writ petitioner by way of

export pass fee had already been recovered on the

principle of shifting incidence from the consumer.

7. The writ petitioner has taken two grounds:

Firstly, the reliance placed by respondent about

applicability of letter no. 280 dated 22.02.2006 is bad in

the eye of law, reason being that, in the earlier round of

litigation the same plea i.e., applicability of letter no. 280

dated 22.02.2006 was taken but the Co-ordinate learned

Single Bench discarded the said contention and hence

again taking the same plea, is nothing but amounts to

outreaching the observations made by this Court in

W.P.(C) No. 5527 of 2007.

Secondly, the question of shifting incidence will not

be applicable since the respondents-authorities have

accepted that deposit of export pass fee is without any

authority of law since no provision under the

statute/notification/rule has been brought by the State-

authorities for deposit of export court fee.

8. While on the other hand, Mr. P.A.S. Pati, learned

counsel for the respondents-State has submitted that

even accepting that the letter no. 280 dated 22.02.2006

is not applicable in the facts of the case but on the basis

of the applicability of principle of unjust enrichment

since the amount which has been deposited by the writ

petitioner by way of export pass fee has already been

shifted on the consumer, the writ petitioner cannot be

allowed to take double advantage. In view thereof,

submission has been made that principle of unjust

enrichment will be applicable.

In order to buttress his argument, he has relied

upon the judgment rendered in the case of MafatLal

Industries Ltd & Ors Vs. Union of India & Ors

(supra).

9. This Court, on appreciation of aforesaid rival

submissions advanced on behalf of parties, is required to

answer the issues as to:

(i).Whether the Notification No. 470-F dated

15.01.1919 will be applicable ?

(ii).Whether the principle of unjust enrichment will be

applicable in absence of any authority of law asking

the writ petitioner to deposit, during the relevant

time, the export pass fee?

10. So far as question no. 1 i.e. applicability of

Notification No. 470-F dated 15.01.1919 in the facts of

the case is concerned, this Court is of the view that the

same cannot be said to be applicable, reason being that,

the same plea i.e., about applicability of Notification No.

470-F dated 15.01.1919 was taken by the respondents

while defending decision dated 22.02.2006, in earlier

round of litigation in W.P.(C) No. 5527 of 2007, taking the

plea that the government had decided to direct the

licensee for deposit of export pass in terms of Notification

No. 470-F dated 15.01.1919. This Court had

considered the aforesaid aspect of the matter and given

specific finding by holding that the direction of levy of

export pass fee on export of beer to other State is being

justified on the basis of Notification No. 470-F dated

15.01.1919 treating at par with the India made Foreign

liquor under Rule 106 A of the rules framed under Bihar

Excise Act, 1915.

The Rule 106A of the Act, 1915 was considered and

thereafter order was passed holding therein that Rule

106 of the Act, 1915 since does not includes bear for the

purposes of liquor export pass fee and as such the plea

taken by the petitioner about non-applicability of the

Notification No. 470-F dated 15.01.1919 appears not to

be justified and in that view of the matter the decision of

the respondent-authority dated 22.02.2006 was quashed

vide order dated 03.10.2012 in W.P.(C) No. 5527 of 2007.

There is no dispute about the fact that once the

ground taken by the State, in earlier round of litigation,

has been discarded, the same cannot be allowed to be

taken in the subsequent writ petition, otherwise the same

will be nothing but will amount to sitting as an appellate

forum upon the order passed by this Court in exercise of

power conferred under Article 226 of the Constitution of

India.

As such, the fact about applicability of Notification

No. 470-F dated 15.01.1919 as has been again raised, as

would appear from supplementary affidavit dated

13.01.2022, is hereby rejected.

11. So far second ground i.e. about applicability of

unjust enrichment is concerned, this Court deems it fit

and proper first to deal with the judgment upon which

learned counsel for the appellants-state has placed

reliance, in MafatLal Industries Ltd & Ors Vs. Union

of India & Ors (supra) .

This Court has perused the aforesaid judgment and

found therefrom that the learned State counsel has

raised the issue of principle of unjust enrichment and to

buttress his argument he has relied upon the judgment

rendered in MafatLal Industries Ltd & Ors Vs. Union

of India & Ors (supra).

There is no dispute about the fact that provision of

the Act, 1915 applies only if the petitioner alleges and

establishes that he has not passed on the burden of duty

to another person or persons.

It is evident from perusal of paragraph 290 of the

aforesaid judgment that the basis for the various refund

claims can be classified into three groups or categories:

(I).The levy is unconstitutional -- outside the

provisions of the Act or not contemplated by the

Act.

(II).The levy is based on misconstruction or wrong

or erroneous interpretation of the relevant

provisions of the Act, Rules or Notifications; or by

failure to follow the vital or fundamental provisions

of the Act or by acting in violation of the

fundamental principles of judicial procedure.

(III).Mistake of law -- the levy or imposition was

unconstitutional or illegal or not exigible in law

(without jurisdiction) and, so found in a proceeding

initiated not by the particular assessee, but in a

proceeding initiated by some other assessee either

by the High Court or the Supreme Court, and as

soon as the assessee came to know of the judgment

(within the period of limitation), he initiated action

for refund of the tax paid by him, due to mistake of

law.

Admittedly, herein, it is also the case of the

respondent-State that no provision is there asking the

writ petitioner to deposit export pass fee upon beer since

beer in view of provision of Rule 106A is not coming

under the category of India made Foreign liquor.

Therefore, whatever amount has been deposited by the

writ petitioner on being asked by the State-respondent by

way of export pass fee'' since is not provided under the

statute, therefore, such deposit will be construed to be in

absence of any law. When the deposit is in absence of law

in that view of the matter principle of unjust enrichment

will not be applicable.

Further, it would be relevant to refer paragraph 108

of the judgment rendered in the case of MafatLal

Industries Ltd & Ors Vs. Union of India & Ors

(supra), which reads as under:

108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.

(i)Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff -- whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter -- by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 -- and of this Court under Article 32 -- cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.

The said enactments including Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act do constitute "law" within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self- contained enactments providing for levy, assessment, recovery

and refund of duties imposed thereunder. Section 11-B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followed and given effect to. Section 72 of the Contract Act has no application to such a claim of refund and cannot form a basis for maintaining a suit or a writ petition. All refund claims except those mentioned under Proposition (ii) below have to be and must be filed and adjudicated under the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be. It is necessary to emphasise in this behalf that Act provides a complete mechanism for correcting any errors whether of fact or law and that not only an appeal is provided to a Tribunal -- which is not a departmental organ -- but to this Court, which is a civil court.

(ii)Where, however, a refund is claimed on the ground that the provision of the Act under which it was levied is or has been held to be unconstitutional, such a claim, being a claim outside the purview of the enactment, can be made either by way of a suit or by way of a writ petition. This principle is, however, subject to an exception : Where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, C.J. in Tilokchand Motichand [(1969) 1 SCC 110 : (1969) 2 SCR 824 : AIR 1970 SC 898] and we respectfully agree with it.

Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying clause (c) of sub-section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be,

since the enactments do not contemplate any of their provisions being struck down and a refund claim arising on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside their purview.

(iii)A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.

The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.

(iv)It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund.

(v)Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes like Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty.

(vi) Section 72 of the Contract Act is based upon and incorporates a rule of equity. In such a situation, equitable considerations cannot be ruled out while applying the said provision.

(vii)While examining the claims for refund, the financial chaos which would result in the administration of the State by allowing such claims is not an irrelevant consideration. Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to

prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State.

(viii)The decision of this Court in STO v. Kanhaiya Lal Mukundlal Saraf [1959 SCR 1350 : AIR 1959 SC 135 : (1958) 9 STC 747] must be held to have been wrongly decided insofar as it lays down or is understood to have laid down propositions contrary to the propositions enunciated in (i) to (vii) above. It must equally be held that the subsequent decisions of this Court following and applying the said propositions in Kanhaiya Lal [1959 SCR 1350 : AIR 1959 SC 135 : (1958) 9 STC 747] have also been wrongly decided to the above extent. This declaration -- or the law laid down in Propositions (i) to (vii) above -- shall not however entitle the State to recover the taxes/duties already refunded and in respect whereof no proceedings are pending before any authority/Tribunal or Court as on this date. All pending matters shall, however, be governed by the law declared herein notwithstanding that the tax or duty has been refunded pending those proceedings, whether under the orders of an authority, Tribunal or Court or otherwise.

(ix) The amendments made and the provisions inserted by the Central Excises and Customs Law (Amendment) Act, 1991 in the Central Excises and Salt Act and the Customs Act are constitutionally valid and are unexceptionable.

(x) By virtue of sub-section (3) to Section 11-B of the Central Excises and Salt Act, as amended by the aforesaid Amendment Act, and by virtue of the provisions contained in sub-section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactments. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution -- or of this Court under Article 32 -- is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under

the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them.

(xi) Section 11-B applies to all pending proceedings notwithstanding the fact that the duty may have been refunded to the petitioner/plaintiff pending the proceedings or under the orders of the Court/Tribunal/Authority or otherwise. It must be held that Union of India v. Jain Spinners [(1992) 4 SCC 389] and Union of India v. ITC [1993 Supp (4) SCC 326] have been correctly decided. It is, of course, obvious that where the refund proceedings have finally terminated -- in the sense that the appeal period has also expired -- before the commencement of the 1991 (Amendment) Act (19-9-1991), they cannot be reopened and/or governed by Section 11-B(3) [as amended by the 1991 (Amendment) Act]. This, however, does not mean that the power of the appellate authorities to condone delay in appropriate cases is affected in any manner by this clarification made by us.

(xii) Section 11-B does provide for the purchaser making the claim for refund provided he is able to establish that he has not passed on the burden to another person. It, therefore, cannot be said that Section 11-B is a device to retain the illegally collected taxes by the State. This is equally true of Section 27 of the Customs Act, 1962.

Herein, it is relevant to refer Rule 106A, as to

whether Rule 106 of the Act, 1915 includes beer also,

which reads as under:

"106A. India made Foreign liquor may be exported to any place outside, provided that an export pass fee at the rate of

[Rs. 6 (Rupeess Six] per London Proof Litre has been levied and realized in the State of Bihar."

This Court, after going through the aforesaid

judgment, has found therefrom that question of refund

can be denied if the duty/fee has been deposited and

accepted by the State under the authority of law. Herein,

the State-authority could not be able to show any

provision of law under the applicable Excise Act

stipulating therein the provision to ask the writ petitioner

to deposit the export pass fee, save and except, taking aid

of Rule 106A of the Bihar Excise Act, 1915, it has been

contended on behalf of State, but, on consideration of the

provision of Rule 106A of the Act, 1915, it is evident that

the 'Beer' has been excluded from Indian made Foreign

liquor and since Rule 106A of the Act, 1915 stipulates

about deposit export pass fee on Indian made Foreign

liquor and 'Beer' since is not coming under the fold of

Indian made Foreign liquor, therefore, for trade of beer

asking the writ petitioner to deposit export pass fee,

cannot be said to be justified action on the part of State

authority and as such, applying the ratio laid down in

MafatLal Industries Ltd & Ors Vs. Union of India &

Ors (supra), this Court is of the considered view that in

the facts and circumstances of the instant case, the

export pass fee cannot be directed to be deposited by the

writ petitioner and if it has been deposited on being

asked by the State, the plea of unjust enrichment cannot

be allowed to be taken merely on the ground that the

incidence of such duty has been shifted upon the

consumer.

12. As such, considering the fact that deposit of export

pass fee by the petitioner even if deposited and since the

statue does not permit such deposit to be made on behalf of

writ petitioner and deposited on being demanded by the

State authority, the State Government cannot come up with

the plea rejecting the claim on the ground of unjust

enrichment, reason being that, the amount which has been

deposited in the State exchequer without any such

provision under the statute, the same has to be refunded

by the respondents and that is the reason the Co-ordinate

learned Single Bench of this Court while deciding the writ

petition being W.P.(C) 5527 of 2007 has quashed order

dated 22.02.2006 and directed the State authority to pass

order afresh on consideration of the fact that under law

where the writ petitioner warrants to deposit such amount

and if there is no statutory provision to that effect the

amount was directed to be refunded along with statutory

interest and more so State instead of challenging the

aforesaid order, has acted and passed fresh order, applying

the same notification which was discarded by the learned

Single Judge in W.P. (C) No. 5477 of 2007 and

supplemented with one another reason about applicability

of principle of unjust enrichment, which this Court has

already held that the principle of unjust enrichment is not

applicable in view of the fact that under the Excise Act,

1915, there is no provision for deposit of export pass fee on

beer.

13. Therefore, this Court is of the view that this is a fit

case where the writ of certiorari is required to be issued on

the principle that if any decision has been taken without

any jurisdiction the same has to be interfered with in

exercise of power of writ of certiorari under Article 226 of

the Constitution of India, as has been held in the judgment

rendered in Syed Yakoob vs. Radhakrishnan, A.I.R.

1964 Supreme Court 477.

Paragraph no. 7 of the said judgment is being

reproduced hereinbelow:

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A

writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958

SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In Hari Vishnu Kamath vs. Ahmad Ishaque and

Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme

Court has held at paragraph no. 21 as under:

"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject- matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

In Sawarn Singh and Anr. vs. State of Punjab

and Ors., (1976) 2 SCC 868 their Lordships, while

discussing the power of writ under Article 226 of the

Constitution of India for issuance of writ of certiorari, has

been pleased to hold at paragraph nos.12 and 13 as under:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of

the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)

13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In Heinz India (P) Ltd. and Anr. vs. State of U.P.

and Ors., (2012) 5 SCC 443 their Lordships have been

pleased to hold at paragraph nos. 66 and 67 as under:

"66.That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

67.In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the

Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."

Further, in this regard, the Hon'ble Supreme Court

in the case of Arun Kumar & Ors Vs. Union of India

[(2007) 1 SCC 732] at paragraph 74, held as under:

"74.A "jurisdictional fact" is a fact which must exist before a court, tribunal or an authority assume jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not process."

14. Accordingly, applying the law laid down by Hon'ble

Apex Court in the facts of the given case for issuance of writ

of certiorari in a case where State has acted contrary to the

authority conferred under the statute, order dated

15.01.2013 as contained in Memo No. 93 is hereby

quashed and set aside.

15. In consequence thereof, the Secretary-cum-

Commissioner, Excise and Prohibition Department, Govt. of

Jharkhand is directed to refund in question with statutory

interest, as directed by the writ Court in W.P. (C) No. 5527

of 2007 within a period of three months from the date of

receipt/production of copy of this order.