Putlur Jambulingam vs Union of India (UOI)

Amitava Lala, J.—In view of the Notification No. 144, Port Blair dated 24.10.1973/Kartika 2, 1895, the Chief Commissioner of the Andaman and Nicobar Islands in exercise of power conferred by Rule 29 of the Andaman Excise Rules, 1934 and in supersession of all previous notifications/orders on the subject, the rates of the excise duty payable by the Licencees on the Indian Made Foreign Liquor and Beer was re-scheduled. However, the said notification was challenged before a Single Bench of the High Court at Calcutta under the constitutional writ jurisdiction and an order was passed by the Single Bench of this Court on 28.8.1975 holding that the Chief Commissioner has got no power to impose the excise duty by the impugned notification under Rule 29 of the Rules, by observing that it seems that the authority concerned sought to impose "excise duty" for importing goods in the Andaman and Nicobar Islands from the mainland. Therefore, the authority has got no power to levy any excise duty upon the Indian Made Foreign Liquor brought from the mainland to the Islands. Subsequently on 16.11.1979 a letter was written by the Ex-Liquor licencee to the concerned Deputy Commissioner that since Regulation 3 has declared null and void and ordered that the excise duty recovered under the provisions of the said Regulation to be refunded to him. The said decision of the High Court is equally applicable to all the liquor licencees and he being the one of the licencee of Mayabunder liquor shop requested to refund the excise duty paid by him during the respective period.

It appears that the authority concerned proceeded in an appeal before the Division Bench of this Court in respect of the licencees in the similarly situated position when an order was passed by the Division Bench of the High Court of Calcutta on 31.1.1994 as reported in 1994 (1) C.L.J. 295 (Harinarayan Arora v. Union of India and Ors. and other matters) where it was held that it is well settled that a Legislature has the legislative competence to render ineffective the earlier judicial decisions by removing or altering or neutralizing the legal basis in the unamended law on which such decisions were founded, even retrospectively. But such power cannot be exercised to render ineffective the earlier judicial decisions by making a law which simply declares that the earlier judicial decisions as invalid or not binding. For such power if exercised would not be a legislative power but a judicial power which cannot be encroached upon by a Legislature under the Constitution of India.

The provision of Section 6(1) of the amendment Regulation of 1984 in substance amounts to declaring earlier judicial decisions as invalid and not binding upon the authorities and hence must be held to be invalid as amount to encroachment upon the judicial power by the Legislature of the state and accordingly the same is ultra vires to the Constitution of India.

The fact that by Section 6(2) of the Amended legislation, those who have got refund will not be affected but those who have not got the refund in terms of the order of the High Court would be affected and would not get the refund amounts to a clear discrimination. Persons concerned who paid exercise duty under a mistake will form one particular class and those who have not been refunded would form another class has no logic or reasonableness and is arbitrary and discriminatory.

5.There cannot be any illegal enrichment if the amounts collected are refunded, rather illegal enrichment, if any, is on the side of the State Administration if they are allowed to retain the collections instead of refunding to the dealers, who definitely paid the amounts and does not appear to have shifted the same separately upon the consumering public.

The authority concerned preferred an appeal to the Supreme Court of India when it was held by the Supreme Court of India that it is a case of unjust enrichment and the excise duty has to be refunded and thereby the appeal was dismissed. Such matter was reported in Deputy Commissioner etc. Vs. Consumer Cooperative Stores Ltd., . Even thereafter a Review Petition (Civil) Nos. 185-87 of 1999 in Civil Appeal Nos. 9170/94 and 1803-04/1999 was made which was summarily dismissed. Therefore, the only course is open to refund the excise duty already received by the respondents authorities along with interest. The same was granted in respect of other licencees by the Authority giving effect to such judgment and order/orders passed by several Courts and even by a Division Bench of this Court in Mat. No. 10 of 1999, dated 22.11.1999. Under such circumstances, I do not find any reason to keep the matter further pending unnecessarily and the same is disposed of with a direction upon the authority concerned to refund the excise duty received from the petitioner from 20.6.1974 to 8.11.1977 along with interest as per the Annexure C to this petition being the refund application dated 16.11.1979 at the rate of 6% per annum as it was fixed by the Division Bench of this Court till the final refund and the same was given effect to by the authority concerned within a period of eight weeks from the date of communication of this order by the petitioner.

Thus this writ petition stand disposed of. No. order is passed as to costs.

Let the xerox certified copy of this order be handed over to the parties within seven days from the date of furnishing the requisites.