# M/s Gurcharan Industrial Works v. Union of India and others

- **Citation:** (2002) 3 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-15
- **Case number:** Civil Misc. Writ Petition No. 187 of 2000
- **Bench:** S.K. Sen, C.J. R. K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gurcharan-industrial-works-v-union-of-india-and-others-40042
- **Pages:** 10

## Headnote

Central Excise and Salt Act 1944 read
with - Central Excise and Custom Laws
(Amendment) Act 1977- 11-B- Refund of
amount- claim for Refund- small scale
industry - exempted from excise duty-
Petitioner under ignorance deposited the
excise duty- application for refund made
on 24.2.97 - after the enforcement of Act
No. 40 of 1991- Rejection of claim held -
proper.
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992 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Held- Para 18

The principles laid down by the Hon'ble
Supreme Court in the case of Mafat Lal
Industries Limited and Jain Spinners
Limited (supra), we are of the view that
the provisions of Section 11-B (2) has to
be
taken
into
consideration
while
granting the refund pursuant to the
orders passed by this Court in the
petitioner's own Writ Petition No. 358 of
1987 and it is not correct to say that the
matter relating to refund had attained
the finality as the Special Leave Petition
was filed beyond time by 115 days which
delay was not condoned by Hon'ble
Supreme Court , as the actual refund of
the amount had not been made by the
authorities and the application for refund
in the prescribed proforma was only
made on 24.2.1997 i.e. after coming into
force of Act No. 40 of 1991 substituting
new Section 11-B in the Act.
Case law discussed:
(1997) 5SCC-536
2000 (120) ELT 291 (SC)
1992 (61) ELT 321
1998 (98) ELT 583
JT 1995 (i) SC-471

## Text

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3 All] M/s Gurcharan Industrial Works V. Union of India and others 991
petitioner. The District Basic Education
Officer has approved the appointment of
the appellants- writ petitioners without
going into the question whether they has
to were major or not on the date of
appointment. Likewise , the District
Inspector of Schools also did not go into
the
question
about
the
minimum
qualifications required at the time of
appointment. Thus, no advantage can be
derived from the order of District Basic
Education Officer and District Inspector
of Schools that they had approved their
absorption. It may be mentioned here that
at the time of appointment Ram Sewak
Warun and Siya Ram Yadav were
Intermediate, whereas Ram Charan verma
and Krishna Chandra Chaudhary were
High School and Ram Ashish Chaudhary
was only Junior High School i.e. Class
VIII. It may also be mentioned here that
they were all in between the age of 14 to
17 years. It may be mentioned that the
appointment on the post of teacher is a
contract between the Committee of
Management and the person so appointed.
Any contract can be entered into only by a
contracting party who is major and no
contract can be entered into by a minor.
However, any person can act on behalf of
the minor. A contract entered into by a
minor is a void contract in terms of
Section 11 of the Indian Contract Act,
1872. In Ma Hnit and others Vs.
Hashim Ebrahim Metev and another
(A.I.R. 1919 Privy Council, 129), it has
been held that a contract by minor is void
and not merely viodable. Thus the
appointment of the appellants- writ
petitioners was void all initio. The
decision relied upon by the learned
Advocate for the writ petitioners that if
the appellants- writ petitioners have been
working for long years and have acquired
the qualifications subsequently, would not
be applicable in the present case. In as
much as, at the time of initial appointment
they were not major and there was no
provision for relaxing the age.

11. On the facts and in the
circumstances of the case, in our view, the
learned Single Judge has rightly held that
the appointment of the writ petitioners
was illegally made.

12. In view of the foregoing
discussions, we do not find any merit in
these
special
appeals.
The
Special
Appeals fail and are dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE R. K. AGARWAL, J.

Civil Misc. Writ Petition No. 187 of 2000

M/s Gurcharan Industrial works

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.D. Dube

Counsel for the Respondents:
Sri S.P. Kesherwani
S.C.

Central Excise and Salt Act 1944 read
with - Central Excise and Custom Laws
(Amendment) Act 1977- 11-B- Refund of
amount- claim for Refund- small scale
industry - exempted from excise duty-
Petitioner under ignorance deposited the
excise duty- application for refund made
on 24.2.97 - after the enforcement of Act
No. 40 of 1991- Rejection of claim held -
proper.
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992 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Held- Para 18

The principles laid down by the Hon'ble
Supreme Court in the case of Mafat Lal
Industries Limited and Jain Spinners
Limited (supra), we are of the view that
the provisions of Section 11-B (2) has to
be
taken
into
consideration
while
granting the refund pursuant to the
orders passed by this Court in the
petitioner's own Writ Petition No. 358 of
1987 and it is not correct to say that the
matter relating to refund had attained
the finality as the Special Leave Petition
was filed beyond time by 115 days which
delay was not condoned by Hon'ble
Supreme Court , as the actual refund of
the amount had not been made by the
authorities and the application for refund
in the prescribed proforma was only
made on 24.2.1997 i.e. after coming into
force of Act No. 40 of 1991 substituting
new Section 11-B in the Act.
Case law discussed:
(1997) 5SCC-536
2000 (120) ELT 291 (SC)
1992 (61) ELT 321
1998 (98) ELT 583
JT 1995 (i) SC-471

(Delivered by Hon'ble R.K. Agarwal, J.)

1. By means of the present writ
petition, filed under Article 226 of the
Constitution of India, the petitioner M/s
Gurcharan Industrial Works, seeks a writ,
order or direction in the nature of
certiorari quashing the orders dated
27.1.1999 and order dated 19.11.1999,
said to have been dispatched vide
registered
letter
no.
5803
dated
22.11.1999, contained in annexure no. 7
and 9 to the writ petition.

2. The petitioner has also sought a
writ order or direction in the nature of
mandamus commanding the respondents
to refund the amount of Rs.4,74,330
alongwith interest at the rate of 18% per
annum from December, 1987 till the date
of payment.

3. Briefly stated the facts giving rise
to the present writ petition are that the
petitioner claims to be a manufacturer of
Rice Mill Plant and its part which fall
under the tariff item no. 68 as it was
existing during the relevant time under the
provisions of the Central Excises and Salt
Act, 1944 (hereinafter referred to as the
Act). It has been registered as a small
scale industry and was initially exempted
from the payment of excise duty on its
clearances. However, the petitioner paid
excise duty under mistake and on
discovery of the mistake, it filed an
application for refund under Section 11-B
of the Act as it then stood. The refund
application was rejected by the Assistant
Collector, Central Excise. The appeal
filed by the petitioner was also dismissed
by the Collector (Appeals) Central Excise.
Thereafter, the petitioner approached this
Court by filing Civil Misc. Writ Petition
No. 358 (Tax) of 1987 wherein it had
challenged both the orders passed by the
Assistant Collector as well as Collector
(Appeals). This Court vide judgment and
order dated 9.12.1987 allowed the writ
petition. The operative portion of the said
judgment is reproduced below:

"In the result, this petition succeeds
and is allowed. A direction is issued to the
opposite parties to refund the duty
collected during 1983-84 and 1984-65 on
clearance for home consumption after
deducting the amount already paid."

4. It may be mentioned here that this
Court had considered the question of
unjust enrichment and had negative the
plea. However, the Court did not grant the
claim of interest on refund illegally
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3 All] M/s Gurcharan Industrial Works V. Union of India and others 993
disallowed by the authorities. The Central
Government filed Special Leave Petition
No. 7561 of 1988 against the judgment
and order dated 9.12.1987 passed by this
court in the aforementioned writ petition
before the Hon. Supreme Court. The Hon.
Supreme Court vide order dated 8.5.1995
dismissed the Special Leave petition as
there was no satisfactory explanation of
delay of 115 days. Thereafter the
petitioner
made
an
application
on
24.2.1997 for refund of the sum of
Rs.4,74,330/-. The Assistant Collector,
Central Excise, respondent no. 2 issued
notice on 10.12.1997 calling upon the
petitioner to show cause as to why the
amount of refund should not be credited
to the Consumer Welfare Fund under
Section 11-B of the Act. The petitioner
submitted
its
reply.
The
Assistant
Commissioner,
vide
order
dated
17.1.1999, rejected the claim of the
petitioner on the ground that a sum of
Rs.1,74,330/- pertaining to the period
10.10.1984 to 4.3.1985 was time barred as
the same was not under dispute in legal
proceedings. As regards the refund of
claim of Rs. 3 lacs, since the petitioner
had failed to furnish any satisfactory
evidence that they had not passed on the
incidence of duty to any other person, the
same was liable to be credited to the
Consumer Welfare Fund. The petitioner
challenged the aforesaid order in appeal
before the Commissioner (Appeals) who
vide order dated 9.11.1999 had rejected
the appeal. Both these orders are under
challenge in the present writ petition.

We have heard Sri S.D. Dubey,
learned counsel for the petitioner and Sri
S.P. Kesarwani learned standing counsel
for the respondents.

5. Since, counter affidavit and
rejoinder affidavit have been exchanged
inter-se parties, with the consent of the
learned counsel for the parties, the writ
petition is finally decided at the admission
stage itself in accordance with the Rules
of the Court.

6. The learned counsel for the
petitioner submitted that the Central
Excise and Customs Laws (Amendment)
Act, 1991 (Act No. 40 of 1991) came into
force w.e.f. 20.9.1991, whereby Section
11-B of the Act was substituted by a new
Section, whereas in the present case, the
refund had been allowed by this Court
vide judgment and order dated 9.12.1987
passed in civil misc. writ petition no. 358
(Tax) of 1987 and when the Government
of India filed Special Leave Petition No.
7561 of 1988, before the Hon. Supreme
Court which was barred by 115 days in
the year 1988 itself, the result was that the
judgment and order dated 9.12.1987
became final before coming into force of
the Act No. 40 of 1991. Thus, the
respondent no. 2 and 3 have wrongly
rejected the claim of refund by applying
the provisions of Section 11-B of the Act.
He
relied
upon
the
decision
of
Constitution Bench of Hon. Supreme
Court in the case of Mafatlal Industries
Limited and others vs. Union of India and
others reported in (1997) 5 SCC 536,
where it has been held that where the
refund
proceedings
have
finally
terminated in the sense that the appeal
period has also expired before the
commencement of 1991 (Amendment)
that cannot be reopened and /or governed
by Section-11 B(3) (as amended by the
1991 Amendment Act), reserving the
powers of the Appellate Authority to
condone the delay in proper cases. Thus,
he submitted that the petitioner is entitled
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994 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
for refund and two orders passed by the
respondent, are liable to be set aside. He
further submitted that the petitioner is also
entitled for interest from the date of
decision of this Court i.e. from 9.12.1987
till the date of its actual payment as the
respondents have illegally retained the
amount despite the direction given by this
Court. According to him, it is not open to
the respondents to raise the question of
unjust enrichment for defeating the claim
of refund as in the earlier proceedings,
this plea was specifically repelled by this
Court.

7. Sri S.P. Kesherwani learned
standing counsel, however, submitted that
out of claim of Rs.4,74,330/- made by the
petitioner, a sum of Rs.1,74,330/- was not
subject matter of consideration before this
Court in Civil Misc. Writ Petition matter
of claim. Thus, the Authorities have
rightly rejected the claim in respect of
Rs.1,74,330/- as having become barred by
time. So far as the claim for refund of Rs.
3 lacs is concerned, he submitted that in
view of Section 11-B of the Act, which
was substituted by Act No. 40 of 1991, it
was obligatory on the part of the
petitioner
to
prove/establish
by
satisfactory evidence that it had not
passed on burden of duty to the
consumer/purchaser and, in the absence of
satisfactory evidence being filed and
proved , the said amount has rightly been
directed to be credited to the Consumer
Welfare Fund. He further submitted that
against the order dated 19.11.1999 passed
by the Commissioner (Appeals) the
petitioner has a right of filing an appeal
before the Custom, Excise and Gold
Control
(Appellate)
Tribunal,
and
therefore, the writ petition should not be
entertained. He relied upon the decision
of Hon. Supreme Court in the case of
Union of India vs. Ingersoll Rand (India)
Limited, 2000 (120) ELT 291 (SC).

8. According to him, since the
petitioner has failed to produce any
material either before the Authorities or
before this Court that it had not passed
burden
of
excise
duty
on
the
consumer/purchaser, in view of specific
provision in Section 11-B (2) of the Act,
the amount of refund so determined shall
be credited to the fund. However, the
amount instead of being credited to the
Fund, is to be paid to the applicant only if
the condition of clause (d) of the proviso
is satisfied. According to him, in view of
sub section 3 of section 11-B of the Act.
Notwithstanding
any
thing
contrary
contained in the judgement of this court,
the refund was to be made only as
provided in sub section (2) of Section 11B of the Act. Thus, the provisions of
Section 11-B (2) are to be complied with.
He relied upon the decision of Hon.
Supreme Court in the case of Union of
India vs. Raj Industries Limited (supra).
He also relied upon the decision of Hon.
Supreme Court in the case of Union of
India vs. Jain Spinner Limited 1992(61)
ELT
321
and
Porcelain
Electrical
Manufacturing Co. Ltd. Vs. Collector of
Central Excise, New Delhi 1998 (98) ELT
583.

9. In reply, Sri Dube submitted that
the alternative remedy is not on absolute
bar where a pure question of law is
involved. He relied upon the decision of
Hon. Supreme Court in the case of Dr.
Bal Krishna Agarwal Vs. State of Uttar
Pradesh and Ors. J.T. 1995 (1) SC
471wherein, the Hon. Supreme Court has
held that 'since the quesdtion that is raised
involves a pure question of law and even
if the matter is referred to the Chancellor
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3 All] M/s Gurcharan Industrial Works V. Union of India and others 995
under Section 58 of the Act, it is bound to
be agitated in the Court by the party
aggrieved by the order of the Chancellor,
we are of the view that this was not a case
where the High Court should have non
suited the appellant on the ground of
availability of an alternative remedy.'

10. Having heard the learned
counsel for the parties, we find that this
Court vide judgment and order dated
19.12.1987 had directed the opposite
parties to refund the duty collected during
the year 1983-84, 1984-85 on clearance
for home consumption after deducting the
amount already paid. The Special Leave
Petition filed by the Government of India
had been dismissed on the ground that the
delay had not been explained. What is the
effect of Section 11-B as substituted by
the Act No. 40 of 1991 on 10.9.1991 is
only a pure question of law. Even if the
petitioner is relegated to the remedy of
appeal before the Tribunal, the matter
would still be agitated by the aggrieved
party before this Court. Thus, in view of
the law laid down by the Hon. Supreme
Court in the case of Dr. Bal Krishna
Agarwal (supra), it will not be proper for
us to direct the petitioner to avail
alternative remedy of filing an appeal.

For resolving the issue raised in the
present petition, it is necessary to quote
the provisions of Section 11-B of the Act
which are as follows :

11. "11-B . Claim for refund of duty
(1) Any person claiming refund of any
duty of excise may make an application
for refund of such duty to the Assistant
Commissioner of Central Excise before
the expiry of six months from the relevant
date in such from and manner as may be
prescribed and the application shall be
accompanied by such documentary or
other evidence including the documents
referred to in Section 12-A as the
applicant may furnish to establish that the
amount of duty of excise in relation to
which such refund is claimed was
collected from, or paid by, him and the
incidence of such duty had not been
passed on by him any other person.

12.

Provided
that
where
an
application for refund has been made
before the commencement of the Central
Excise and Customs Laws (Amendment)
Act, 1991, such application shall be
deemed to have been made under this sub
section as amended by the said Act and
the same shall be dealt with in accordance
with the provisions of sub section (2)
substituted by that Act.

Provided further that the limitation of
six months shall not apply where any duty
has been paid under protest.

(2) If, on receipt of any such
application, the Assistant Commissioner
of Central Excise is satisfied that the
whole or any part of the duty of excise
paid by the applicant is refundable, he
may make an order accordingly and the
amount so determined shall be credited to
the Fund.

Provided that the amount of duty of
excise as determined by the Assistant
Commissioner of Central Excise under
the foregoing provisions of this sub
section shall, instead of being credited to
the fund, be paid to the applicant, if such
amount is relatable to -

(a) rebate of duty of excise on excisable
goods exported out of India or on
excisable
materials
used
in
the
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996 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
manufacture of goods which are exported
out of India,
(b) unspent advance deposits lying in
balance in the applicant's account current
maintained with the commissioner of
Central Excise,
(c) refund of credit of duty paid on
excisable goods used as imputs in
accordance with the rules made, or any
notification issued, under this Act;
(d) the duty of excise paid by the
manufacturer, if he had not passed on the
incidence of such duty to any other
person;
(e) the duty of excise borne by the
buyer, if he had not passed on the
incidence of such duty to any other
person;
(f) the duty of excise borne by any other
such class of applicants as the Central
Government may, by notification in the
official Gazette, specify;

Provided further that no notification
under clause (f) of the first proviso shall
be issued unless in the opinion of the
Central Government the incidence of duty
has not been passed on by the persons
concerned to any other persons.

(3) Notwithstanding anything to the
contrary contained in any judgment
decree, order or direction of the Appellate
Tribunal or any Court or in any other
provision of this Act, or the rules made
there under or any other law for the time
being in force, no refund shall be made
except as provided in sub section (2).

Explanation - For the purposes of
this section, ......
(B) 'relevant date' means-
(f) in any other case, the date of
payment of duty "

13. From reading the aforesaid
section, it is seen that any person who is
claiming refund of any duty of excise has
to make an application before the expiry
of six months from the relevant date to the
Assistant Commissioner of Central Excise
in such a form and manner as may be
prescribed . The limitation of six months
will not apply where any duty has been
paid under protest. Sub section 2 provides
that the Assistant Commissioner of
Central Excise, if satisfied that whole or
any part of duty of excise paid by the
applicant is refundable, he may make an
order
accordingly
and
amount
so
determined shall be credited to the Fund.
However, the proviso to sub section 2
empowers the Assistant Commissioner,
Central Excise instead of crediting the
amount to the fund, to pay to the applicant
on fulfillment of any one of the conditions
mentioned in sub clause (a) to (f) of the
said proviso. Clause (d) provides that if
the
duty
of
excise
paid
by
the
manufacturer, had not been passed on to
any other person. Sub section 3 of Section
11-B provides that notwithstanding any
thing to the contrary contained in any
judgment, decree, order or direction of the
Appellate Tribunal or any Court or in any
other provisions of this Act or the rules
made thereunder or any other law for the
time being in force, no refund shall be
made except as provided in sub section
(2).

14. Thus, from a conjoint reading of
the various provisions of Section 11-B of
the Act, it is clear that any amount of
excise duty which is found refundable has
to be credited by the authorities to the
Fund. But if the duty of excise paid by the
manufacturer had not been passed on to
any other person instead of crediting. The
said amount to the fund, can be paid to the
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3 All] M/s Gurcharan Industrial Works V. Union of India and others 997
person concerned. These provisions are
applicable notwithstanding any thing to
the contrary contained in any judgment,
decree, order or direction of the Appellate
Authority or any Court. This Court vide
judgment and order dated 9.12.1987 had
directed the opposite parties to refund the
duty collected during the year 1983-84,
1984-85. The application for refund was
made by the petitioner on 8.2.1988.
However, the duty was not refunded. The
matter remained pending. After the
Special Leave Petition was dismissed by
the Hon. Supreme Court on 8.5.1995, the
petitioner made an application in the
proper form on 24.2.1997 claiming
refund.
The
said
application
was
processed under Section 11-B of the Act.
The petitioner did not give any evidence
to show that he had not passed on the
incidence of duty to any other persons as
required under Clause (d) of the proviso
to sub section 2 of Section 11-B of the
Act and, therefore, the claim has been
rejected and the amount of refund has
been credited to the Consumer Welfare
Fund. The reliance placed by the learned
counsel for the petitioner to paragraph
108 (XI) of the decision of Hon. Supreme
Court in the case of Mafatlal Industries
Limited
(supra)
wherein
the
Hon.
Supreme Court has held as follows:

"(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 and Union of India vs.; ITC has
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."

is misplaced, in as much, in the present
case, the refund proceeding had not been
finally terminated as no refund of the
amount was actually given to the
petitioner. The Hon. Supreme Court in the
case of Mafatlal Industries Limited has
held that Section 11-B would not apply to
a case where the duty may have been
refunded
to
the
petitioner/plaintiff
meaning thereby, where the refund
proceeding has been finally terminated in
the sense that the appeal period has also
expired before commencement of the
1991 (Amendment) Act and they cannot
be reopened and or governed by Section
11-B (3).

15. As we have found that even
though this court had directed for the
refund of the amount of duty to the
petitioner as far back in the year 1987,
the petitioner had made an application in
the
prescribed
proforma
only
on
24.2.1997 and, therefore, in view of
provisions of Section 11-B (3) of the Act,
the claim of refund has to be processed in
accordance with the provisions of Section
11-B of the Act.

16. In the case of Jain Spinners
Limited (supra) the Hon. Supreme Court
has found that refund was allowed by the
Assistant Collector as result of the
approval of the classification list as filed
by
the
assessee
provisionally.
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998 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Subsequently, on receipt of a test report
from the Deputy Chief Chemist, the
department took the view that the refund
had been erroneously granted and sought
to recover it by issuance of a notice. The
Assistant Collector confirmed the demand
for payment of the duty amount, which
had been erroneously refunded. The
assessee questioned the order of the
Assistant Collector through a writ petition
before the High Court and also by filing
an appeal before the Collector of Central
Excise (Appeals). The High Court issued
an interim stay in favour of the assessee
against the demand confirmed by the
Assistant Collector's order subject to the
assessee depositing the amount of the
demand in the Court. The respondent
(Union of India) was permitted to
withdraw the amount by an interim order
of the Court on February 19, 1986 subject
to the condition that it would pay interest
at bank rate and refund the amount
alongwith interest within two months of
the decision of the writ petition if the
petitioner
ultimately
succeeded.
The
appeal filed by the assessee before the
appellate authority, however, succeeded
and consequential relief was ordered, 'if
otherwise
admissible'.
The
assessee,
thereupon, filed an application before the
Assistant Collector for refund of the duty
plus interest as per the conditions
contained in the interim order of the High
Court.
The
assessee
also
filed
an
application before the High Court stating
that in view of the appellate order, the
writ petition no longer survived and
sought a direction to the respondents to
pay the amount alongwith interest. The
High Court allowed the application of the
assessee on September 19, 1991 and
directed the Union of India to refund the
amount
due
to
the
assessee.
On
September 20, 1991, Act 40 of 1991 came
into force, prohibiting the grant of refund
except in accordance with the provisions
of sub section (2) of Section 11-B. The
Union of India filed an application stating
that whether it was the High Court's order
of February 19, 1986 or September 19,
1991, it was the duty of the Assistant
Collector to satisfy himself that no part of
the duty in respect of which refund was
claimed was recovered by the assessee
from any other person before making an
order of refund. The Union of India
sought two months time to consider the
claim for refund in accordance with the
amended provisions of Section 11-B. The
application was rejected by the ;High
Court in view of the order dated
September 19, 1991 which had been
passed prior to the coming into force of
the Amendment Act with effect from
September 20, 1991. In November 1991,
the assessee filed a contempt petition
alleging failure on the part of the officers
of the Union of India to comply with the
High Court's order granting refund to the
assessee. When the petition came up for
hearing on March 18, 1992, the counsel
for the respondent submitted that the
question regarding the applicability of the
amended
provisions
was
under
consideration of the Government and he
sought time. On April 13, 1992, the
Assistant Collector passed an exhaustive
order holding that since the assessee had
passed on the incidence of duty to others,
it was not entitled to receive the refund.
The High Court at the time of hearing of
the contempt petition, on April 20, 1992,
was apprised of the order of the Assistant
Collector, but it held that the decision of
the Assistant Collector was not a decision
of the Government and directed the
Union of India to deposit the entire
amount of refund with bank interest on or
before April 24, 1992. It was in this
http://www.allahabadhighcourt.nic.in
3 All] M/s Gurcharan Industrial Works V. Union of India and others 999
background, that the Union of India filed
an appeal before Apex Court against the
order dated April 20, 1992 passed by the
High Court to give effect to its earlier
order dated February 19, 1986. The Apex
Court held that the High Court's order of
February 19, 1986 under which alone the
refund was claimed could not be an
exception to the provisions of Section 11B (3) of the Act, and that the High Court
could not have made any order, after
September 20, 1991 directing the payment
of refund contrary to the amended
provisions of Section 11-B 2) of the Act.
The Court expressed the view that Section
11-B of the Act, as amended, would apply
to
all
cases
which
were
pending
notwithstanding any order or decree or
judgment of a court or tribunal or the
provisions of any other law for the time
being in force. The Apex Court inter alia
held as follows:

"The only question before us is
whether the impugned order dated April
20, 1992 of the High Court which is
passed to give effect to its earlier order of
February 19,.1986, is valid or not. Since,
we are of the view that the order of
February 19, 1986 attracts the provisions
of sub section (3) of Section 11-B of the
Act which has come into force on
September 20, 1991 the respondents are
not entitled to take advantage of the said
order unless they succeed in showing to
the statutory authorities that they had not
passed on the whole or any part of the
duty in question to others."

In the case of Union of India vs. Raj
Industries (supra), the Hon. Supreme
Court has held as follows :

17. "It is well settled that where a
claim for refund of any duty or tax paid
arises for consideration of the authorities
apart from the merits of the claim and
even if on merits it is found to be a
justified claim, the principles of unjust
enrichment has also to be kept in view
before directing the refund."

18. Applying the principles laid
down by the Hon. Supreme Court in the
case of Mafat Lal Industries Limited and
Jain spinners Limited (supra), we are of
the view that the provisions of Section 11B (2) has to be taken into consideration
while granting the refund pursuant to the
orders passed by this Court in the
petitioner's own Writ Petition No. 358 of
1987 and it is not correct to say that the
matter relating to refund had attained the
finality as the Special Leave Petition was
filed beyond time by 115 days which
delay was not condoned by Hon. Supreme
Court, as the actual refund of the amount
had not been made by the authorities and
the
application
for
refund
in
the
prescribed proforma was only made on
24.2.1997 i.e. after coming into force of
Act No. 40 of 1991 substituting new
Section 11-B in the Act.

19. In view of the foregoing
discussions, we do not find any illegality
in the impugned orders challenged by the
petitioners in this writ petition. The writ
petition fails and is dismissed.

However, the parties shall bear their
own costs.
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http://www.allahabadhighcourt.nic.in
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S. RAFAT ALAM, J.

Special Appeal No. 495 of 1996

Director Mandi Parishad, Lucknow and
others

 ...Appellants
Versus
Sohan Lal and another ...Respondents

Counsel for the Appellants:
Sri B.D. Madhyan
Sri Satish Madhyan

Counsel for the Respondents:
Sri R.K. Ojha
Sri A.K. Tiwari
S.C.

Constitution
of
India,
Article
226-
Appointment- Land acquired for Mandi
Samiti-
adequate
compensation
alongwith 12% interest apart from 30%
solatiam for distress also provided- No
promise for giving appointment at initial
stage of acquisition- in absence of
statutory provision- appointment can not
be claimed as a matter of right.

Held- Para 13

It has also not been asserted nor argued
before this Court that at the time of
acquisition of the land any assurance or
promise was made to the respondent no.
1 or his father to provide job to one of
his family members. Therefore, in the
absence of any statutory provisions or
any promise, the petitioner-respondent
no. 1 cannot claim appointment as a
matter of right nor the appellant can
make
such
appointment
without
following the procedure provided in the
Regulation.
Case law discussed.
AIR 1967 SC-1753
(Delivered by Hon'ble S. Rafat Alam, J. )

1. This is a Special Appeal under the
Rules of the Court arising out of the order
of the learned Single Judge dated
17.5.1996 in Writ Petition No. 23803 of
1994 whereby the learned Single Judge
held that the respondents- appellants are
under duty to give employment to the
members of such families whose land is
acquired, irrespective of the fact whether
post is available or not and allowed the
writ petition and directed the respondents-
appellants to give employment to the
pettoner- respondent no. 1 within two
weeks from the date certified copy of the
order is served upon them.

2. It appears that the land bearing
Plot No. 421 having an area of one bigha
belonging to the father of the petitioner-
respondent no. 1 was acquired in the year
1988. His father, therefore, made a
representation on 10.8.1988 (Annexure-8
to the writ petition) before the Deputy
Director (Administration), Rajya Krishi
Utpadan
Mandi
Parishad,
Allahabad
(appellant
no.
3)
stating
that
his
agricultural land has been acquired for the
construction of Krishi Utpadan Mandi
Samiti, Ajhuaha
in the district of
Allahabad and after that acquisition he
has no means for his livelihood and as
such one person of his family should be
given appointment in the Krishi Utpadan
Mandi Samiti Ajhuaha in terms of the
G.O. dated 15.6.1985 (Annexure No. 2 to
the writ petition). He filed another
representation on 11.4.1994 addressed to
the Director, Rajya Krishi Utpadan Mandi
Parishad, Lucknow making a request to
give appointment to his son, Sohan Lal
petitioner-respondent no. 1 against a
suitable post in the Krishi Utpadan Mandi
Samiti, Ajhuaha
in the district of