LexMAFATLAL INDUSTRIES LTD. ETC. ETC. versus UNION OF INDIA ETC. ETC.
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., MAFATLAL INDUSTRIES LTD. ETC. ETC. v. UNION OF INDIA ETC. ETC. DECEMBER 19, 1996 (A:M. AHMADI, 0., J.S. VERMA, S.C. AGRAWAL, B.P. JEEVAN REDDY, DR. A.S. ANAND, B.L. HANSARIA, S.C. SEN, K.S. PARIPOORNAN AND B.N. KIRPAL, JJ.] Excise/Customs : Excise/Customs duty levied on misrepresentation/misapplication/er- roneous interpretation of the statutory provisions under provisions declared unconstitutional or under mistake of law-Remedies open--Maintain_ability of suit under S. 72 of Contract Act or writ petition under Art. 226 or Art. 32 A B c or other remedies provided in Excise Act or Customs Act-Held, where refund D is claimed on the ground that provisions of the Central Excises Act/Customs Act whereunder duty levied is or held to be unconstitutional, suit or writ petition would be maintainable-However, all refund claims must be filed and adjudicated under the Central Excises Act or the Customs Act-In such cases suit invoking S. 72 of Contract Act would be bamd-Writ jurisdiction in such cases to be exercised in accordance with the legislative intent manifested in the Act-fn all situations refund can only be allowed where manufacturer- assessee has not passed on the burden of tax to third parties viz. con- sumers-Presumption is of passing on the burden to the consumers-Burden E on the manufacturer to rebut the presumption by establishing to the con- trary-Doctrine of undue enrichment applicable to such assessees but not F applicable to State-Contract Act, 1872, S.72. Excise duty paid under a provision declared unconstitution- al----Petitioner failing to assail its constitutionality and the decision becoming final-Declaration of unconstitutionality obtained by another person on another ground-Held cannot be availed of by such petitioner to reopen the G decision in his case. Excise duty paid under mistake of law-Refund-Maintainability of suit or writ petition-Held, Once assessment or levy became final in case of a manufacturer- assessee, he cannot later file suit or writ petition claiming H 585 586 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R. A refund on the ground that decision of Court or Tribunal in another person's case led Jiim to discover the mistake of law under which he paid the duty. In . all cases where suit or writ petition is open, it is necessary for the plain- tiff/petitioner to file suit or writ petition within the limitation period under S.17(1)(c) of Limitation Act and to allege and establish that he has not B passed on the burden of tax to the consume1~Where claim has to ?e made under the Central Excises Act or Customs Act, and no suit lies, such claim to be preferred within the period of limitation prescribed under the said Acts--LimitationAct, 1963, S.17(1)(c). State can raise plea in defence, of spending away the amount of tax C collected under unconstitutional law and/or of financial chaos in administra- tion of the State, as a result of allowing claim of refund-Such plea by assessee not tenable where he has not passed on the burden of duty to others. State cannot reclaim the refunded amounts where no proceedings are D pending-All pending matters to be governed by the law declared in the present case notwithstanding any refunds made in such pending proceedings. Excise Law: Central Excises and Salt Act, 1944-Ss.Jl-B, 11-C, 12-A, 12-B, 12-C, E 12-~Validity of-Held, valid-S.11-B not a device to retain illegally col- lected du~Ss.11-B and 12-B have the effect of changing the very nature of excise duty. S.11-B-Retrospective operation-Refund-Tax levied under mistake of F law-Limitation-Held, S.11-B applies to all pending proceedings but not to those proceedings which have become final after appeal period expired before the commencement of the 1991 Amendment Act-Application for refund under S.11-B to be made within six months from date of payment of du~Since this requirement cannot be complied with in respect of pending 'G decrees or orders, to ensure that such orders and decrees are not frnstrated, it must be deemed that the duties were paid 'under protest' within the meaning of second proviso to S.11- B(l)-Customs Act. 1962, S.27. Central Excise Rules, 1944-R.233-B-<Jrounds for payment of duty under protest-Assessee need not particularise the grounds-Letter of protest H acknowledged by the Officer shall be proof of payment of duty under protest MAFA1LALINDS. LTD. v. U.O.I. 587 under S.11-B of the Central Excises and Salt Act. A Constit
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