TaxTMI 
TaxTMI 
2025 (9) TMI 127
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....TAT in the case of Mahavir Generics vide Final Order No.12/2004-NB (A) dated 27.04.2004. Learned Commissioner (Appeals) rejected the appeal filed by the appellants and upheld the original order. 3. Learned Counsel for the appellants reiterates the grounds of appeal and submits that they are eligible for the refund claim on the grounds that limitation is applicable from the date of knowledge of the mistake rather than the date of making deposit due to mistaken notion. He relies on the following cases: • Mahavir Generics Vs. CCE, Bangalore -2004 (170) ELT 78 (Tri -Del.) • Parijat Construction Vs. CCE, Nashik -2018 (9) GSTL 8 (Bom.) • CCE (Appeals), Bangalore Vs. KVR Construction -2012 (26) STR 195 (Kar.) • Commissioner Vs. KVR Construction -2018 (14) GSTL J7 (S.C.) • Tripura Cricket Association Vs. Union of India -2023 (70) GSTL 259 (Tripura High Court) • CCE, Bangalore-III Vs. Motorola India Pvt. Ltd. -2006 (206) ELT 90 (Kar.) • Bellatrix Consultancy Services Vs. CCT, Bangalore -2022 (67) GSTL 59 (Kar.) • Rattan India Power Ltd. Vs. CCE & CGST, Delhi 2022 (65) GSTL 122 (T....
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....ction 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 11B. 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 11B of 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 11B 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 ....
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....nother 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 salutory doctrine. No person can seek to collect the duty from both ends. In other words, he cannot ....
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....dministration 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 Sales Tax Officer, Benaras v. Kanhaiyalal Mukundlal Saraf [1959 S.C.R. 1350] 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 Kanhaiyalal 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 pendin....