1. This notice of motion seeks an unusual relief. Having regard to the more unusual stand taken by the respondents, I propose to grant it.
2. On 3rd October 1981 my brother Pendse delivered a judgment in the writ petition. He made the rule absolute and declared that the petitioners' products were liable to excise duty under tariff item 26A(2) or 27(b), as the case may be, and not under item 68 or item 22(1). He observed that, since the petitioners had paid duty from time to time under protest, they would be entitled to file an application for refund. He ordered that, in case the petitioners filed such application, 'the department should dispose it of within a period of six months from the date of filing.'
3. The petitioners filed the application for refund on 14th May 1982. By an order passed on 18th November 1982 the Assistant Collector of Central Excise sanctioned an amount of Rs. 86,81,281.89 P. as refund. He directed that the said amount should be released to the petitioners only after the expiry of two months from the date of the order so that the department would be 'in a position to take consequential action for reversal of proforma credit already availed of by the manufacturers- customers' of the petitioners.
4. The period of two months stipulated by the Assistant Collector came to an end on 18th January 1983. The petitioners have, however, despite demands, not been paid the said amount.
5. On 29th January 1983 the petitioners took out this notice of motion asking that the respondents be ordered and directed to pay to them the said amount of Rs. 86,81,281 89 P. and interest thereon at the rate of 21% from 19th January 1983 till payment. Their case requires no elaboration.
6. Two submissions were made before me by Mr. R.L. Dalal, learned Counsel for the respondents, the first of which, to my mind, exacerbates the situation. It is that the order of Pendse J. only requires the respondents to dispose of the petitioners' application for refund within 6 months of its filing ; it is not an order for payment. I asked Mr. Dalal what it was, in his submission, that the order contemplated ; were the petitioners required to file a suit to obtain payment Mr. Dalal fairly stated that, of course, the respondents were obliged to make payment of the amount found to be due. This, no doubt, was how Pendse J. looked at it and deemed it superfluous to specify that payment of the amount found to be due should be | made. It was not for the fun of it that his order required that the application for refund should be disposed of within 6 months. it went without saying, and 1 am surprised to hear that it was needed to be ordered in specific terms, that payment was ordered. It would be well to bear in mind that the petition sought refund of the excess duty collected by the respondents and it was in this context that this order was made. An order directing payment upon this motion would amount, in that sense, only to dotting the i's and crossing the t's of Pendse' J's order.
7. The other submission was, and this is stated in the affidavit in reply, that the respondents want to file a special leave petition before the Supreme Court; that the respondents should be allowed to deposit the said amount in court and the same should permit the petitioners to withdraw it only after the expiry of 2 months or such period as may seem fit during which time the special leave petition would be filed and heard. The judgment and order of Pendse J. was passed on 3rd October 1981. An appeal therefrom was filed by the respondents before a Division Bench of this Court and was summarily rejected on 27th August 1982, some five months back. It would appear that the respondents have found it imperative to have the Supreme Court decide the matter only after the Assistant Collector found that the amount of Rs. 86,81,281.89 P. was due and payable by them by way of refund to the petitioners, the period of 8 weeks to make such payment had expired and the respondents were faced with this motion. Nothing bars the respondents from filing the special leave petition when they choose but they are not entitled to hold up payment till then.
8. The respondents are holding a very large sum of money belonging to a company, contrary to the order of this Court and of one of their officers, without a title of right. They have, as their submissions indicate, gone to surprising lengths to justify doing so. 1 find it proper, therefore, to direct that the respondents do pay to the 1st petitioner the sum of Rs. 86,81,281.89 on or before 17th February 1983. The respondents shall also pay to the petitioners the costs of this notice of motion.