TaxTMI 
TaxTMI 
2001 (10) TMI 108
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....h amount of books of accounts. The writ petitioners also prayed for writ in the nature of prohibition prohibiting the respondents from withholding the amount of Rs. 17 lakhs security of Rs. 10,000/- and from retaining the books of accounts and cash seized on 16-1-96. 2.The ld. Single Judge by judgment and order which is impugned in this appeal directed the Commissioner of Central Excise to refund Rs. 17 lakhs together with interest @ 30% P.A. from the date of seizure till date of payment and also refund the security to the extent of Rs. 10,000/- together with interest @ 12% p.a. from the date of deposit of the said sum. The ld. Single Judge also directed the respondents to pay interest @ 12% P.A. on the sum of Rs. 80,000/-from the date of seizure till the date of refund. The ld. Single Judge also directed that on receipt of the aforesaid amount together with interest the writ petitioners shall keep the sum in a short term fixed deposit account with ANZ Grindlays Bank, Church Lane Branch and the same shall not be appropriate till 31st December, 1999 or until further direction which may pass by the Supreme Court if any action is taken. The Bank concerned shall not allow encashment....
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....any breach of Central Excise Rules rendering such goods liable to confiscation, I hold that Section 101 to the Customs Act has no invokable in the present case. (ii) Under Rule 173Q(bbb), I therefore, impose 209A of the said Act, Rs. 2 lakhs against the Respondent No. 2 herein..... (iii) I also order recovery of the amount of penalty of Rs. 15 lakhs only and Rs. 2 lakhs only from the seized amount of Rs. 17,80,000/-. The balance amount of Rs. 80,000/- should be refunded to the dealer. (d) Four appeals were preferred against the two orders dated 17-5-97 and 16-5-97 before the Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Calcutta hereinafter referred to as "CEGAT". 16th May, 1997 : ............. Rs. 17 lacs ordered to be adjusted against the penalty of Rs. 17 lacs and the balance amount of Rs. 80,000/- ordered to be refunded to the dealer. (e) By order dated 5-3-1998 dissenting orders were passed by the learned Technic....
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....aling goods liable to confiscation. The learned Counsel for the appellant submitted that in similar circumstances the Hon'ble Supreme Court in the case of Union of India v. Orient Enterprises [1998 (99) E.L.T. 193 (S.C.)] held that no right accrues entitling payment of interest on delayed refund unless statute provides. It has also been submitted by the appellants that in this judgment Hon'ble Supreme Court held that if the statute for example Customs Act and Central Excise Act provides for payment of interest, only then interest can be paid. It has further been submitted that in this judgment also the Hon'ble Supreme Court followed the principle of Sugan Mal's case (supra) and observed that writ petition for only refund of money is not maintainable. It(2) has also been submitted by the appellants that under Central Excise Act, Section 11BB, provides for payment of interest for delayed refund of duty which came into force on 26-5-1995 only and in view of the judgment of the Hon'ble Supreme Court and there being no provision for payment of interest for refund of money other than the duty the learned Single Bench should not have awarded any interest. It(3) has been submitted....
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....the facts being more or less admitted following points need be decided :- Whether(1) the writ petition is maintainable which has been made for refund of money or whether in the instant case the issue should be relegated to the suit. Whether(2) the interest should be paid on the refund amount and if so to what extent. 8.Now on the first point at issue referred to above it is the submission of Mr. Roy Chowdhury that no writ is maintainable for refund of money and the respondents should take the recourse of suit in the Trial Court. He relied on the decision reported in AIR 1965 SC 1740, Sugan Mal v. State of Madhya Pradesh & Ors. In the said decision, the observation of the Hon'ble Supreme Court which is relevant for the purpose is as follows :- "On the first point, we are of opinion that though the High Court have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue writ of Mandamus directing the state to refund the money is not ordinarily maintainable for the simple reason that a claim for such refund can always be made in the suit against the authority which had il....
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....aim, defences which cannot, in most cases be appropriately raised in the writ jurisdiction. It is, therefore, clear that the Hon'ble Supreme Court did not conclude that writ petition is not at all maintainable when there is prayer for refund of money and writ of Mandamus cannot be issued for giving directions on the authorities to grant refund of money and, in fact, what comes out from the decision that Hon'ble Supreme Court thought about possible defences to be raised on behalf of the State in the suit. But in the instant case admitted position is that there is no defences on behalf of authority in so far as the refund of money is concerned inasmuch as when it has been decided by the Central Excise Commission that the seizure of money in the instant case is illegal and no appeal as has been preferred against that order by the authorities concerned or by the department. 11.On the contrary, in the decision reported in AIR 1989 SC 1607, Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani the Hon'ble Supreme Court observed : "The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the dut....
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....nce on either point in the view we take. Where public bodies, under colour of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy' since the root principle of law married to justice, is ubi jus ibii remedium. Long ago Dicey wrote : "The law ubi jus ibi remedium, becomes from this point of view something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen...., The Constitution of the United States and the Constitution of the separate States are embodied in written or p....
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....orted in AIR 1972 SC 973 (Municipal Corporation of Greater Bombay v. The Advance Builder India (P) Ltd. & Anr.) where it has been observed :- "It is true that the writ of Mandamus is not a writ of course or a writ of right but as a rule, a matter for the discretion of the Court. But when the High Court has exercised its discretion in directing that which is in itself a lawful to be done, no other court can question that discretion by Special Leave, will not ordinarily question that discretion." 16.It is now well settled that wherever there is injustice the writ of Mandamus would reach and this is discretionary and in the instant case when admittedly the seizure of money is illegal and when admittedly there is no option but to refund the money and when admittedly the efficacious remedy is writ the appellant cannot challenge the jurisdiction of the ld. Single Judge in exercising his discretion directing the authorities to refund the amount illegally seized. 17.With regard to the second point which is to be decided is whether interest is to be paid when refunding the illegally seized amount, Mr. Roy Chowdhury placed reliance on the case of Union of India v. Orient Enterprises....