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Karnataka Electricity Board Vs. Assistant Collector of C. Excise - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 18117 of 1984
Judge
Reported in1985(6)ECC30; 1986(6)LC237(Karnataka); 1993(66)ELT147(Kar)
ActsCentral Excises Act, 1944; Indian Electricity Act, 1910; Constitution of India - Articles 12 and 226
AppellantKarnataka Electricity Board
RespondentAssistant Collector of C. Excise
Excerpt:
.....duty paid on electricity generated and supplied for agricultural purposes stay rightly rejected as assistant collector most implement order of collector (appeals)--statutory authority (electricity board) is a 'state' within the meaning of article 12; therefore payment of refund would cause no harm to the revenue--payment of interest is not provided for in any statutory provision. - karnataka societies registration act, 1960 (17 of 1960) sections 9 & 10 :[p.d.dinakaran, c.j. & v.g.sabhahit,j] alternation of memorandum procedure - amendment into bye-laws of societies - in order to conduct special general body meeting notice has been served to all members - however, said notice was not accompanied by proposed amendment - every resolution has to be passed by members - special general body..........by government. 3. sometime in 1984 or earlier, the petitioner made an application before the assistant collector of central excise, lalbagh division, bangalore ('assistant collector') for refund of the whole of the excise duty paid on the electricity generated and supplied for agricultural purposes in terms of the relevant notification issued thereto by government who on 10th january, 1984 rejected the same. against the said order of the assistant collector, the petitioner filed an appeal in appeal no. 60/84b before the collector of central excise (appeal) madras ('collector') who by his order dated 19th july, 1984 (annexure-a) allowed the same and directed the assistant collector to refund the amounts paid for the aforesaid period, if they were otherwise in order. but, however, to.....
Judgment:
ORDER

Puttaswamy, J.

1. This case was posted before me today for further orders. But, as agreed to by both sides, this case is treated as listed for final hearing today and is accordingly heard.

2. 'The Karanataka Electricity Board, Bangalore' constituted and functioning under the Indian Electricity Act of 1910, a statutory authority charged with the duty of generating and supplying electrical energy in the State of Karanataka is the petitioner before me. From January, 1981 to December, 1982, the petitioner generated and supplied various quantities of electrical energy for agricultural purposes in the State on which also, it had paid a sum of Rs. 2,02,90,938.44 or so to the Union Government as excise duty under the Central Excises and Salt Act, 1944 (Central Act No. 1 of 1944) ('the Act') though payment of such duty was exempted by Government.

3. Sometime in 1984 or earlier, the petitioner made an application before the Assistant Collector of Central Excise, Lalbagh Division, Bangalore ('Assistant Collector') for refund of the whole of the excise duty paid on the electricity generated and supplied for agricultural purposes in terms of the relevant notification issued thereto by Government who on 10th January, 1984 rejected the same. Against the said order of the Assistant Collector, the petitioner filed an appeal in Appeal No. 60/84B before the Collector of Central Excise (Appeal) Madras ('Collector') who by his order dated 19th July, 1984 (Annexure-A) allowed the same and directed the Assistant Collector to refund the amounts paid for the aforesaid period, if they were otherwise in order. But, however, to complete the narration on this aspect, it is necessary to state that against the said order of the Collector, the Union Government or Revenue has filed an appeal in Appeal No. 2995 of 1984D before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi ('Tribunal') with an application for stay which on 31st May, 1985 has rejected the application for stay.

4. On receipt of the order of the Collector, the Assistant Collector should have suo motu implemented the same within a reasonable time. But, alas that he did not do. In that view, after waiting for a reasonable time, the petitioner on more than one occasion reminded and requested the Assistant Collector to make payment of the refunds in terms of the order of the Collector. Even on these requests made by the petitioner, the Assistant Collector did not take prompt steps and was dragging his feet and therefore, the petitioner approached this Court on 15th November, 1984 in this writ petition under Article 226 of the Constitution seeking for a writ in the nature of mandamus to the Assistant Collector who is again resisting the same on more than one ground.

5. Shri C. R. Sridhar, learned counsel for the petitioner, contends that so long as the appellate order made by the Collector was in force, his client had a legal right for payment of the refund the amounts without procrastinating and concerning himself with the appeal filed by the Revenue before the Tribunal and therefore, the Assistant Collector should be directed to refund the amounts with interest thereon at the bank rate as was done by the Supreme Court in Elpro International Limited and Others v. Joint Secretary, Government of India, Ministry of Finance and Others - : 1985(19)ELT3(SC) .

6. Shri K. Shivashankar Bhat, learned Senior Standing Counsel for the Central Government, appearing for the respondent, refuting the contention of Shri Sridhar, has urged that the right, if any, acquired by the petitioner was an 'imperfect right' and that this is a fit case in which this Court should decline to assist the petitioner before the Tribunal made its final order on the appeal filed by the Revenue. In support of his contention, Shri Bhat has strongly relied on Section 35F of the Act and also on passage occurring at page 630 under the heading 'mandamus' in Wade's Administrative Law, V Edition, which reads thus :-

'Essence of mandamus is that it is a royal command issued in the name of the Crown from the Court of King's Bench (now Queen's Bench Division of the High Court) ordering the performance of a public legal duty. It is a discretionary remedy and the Court has full discretion to withhold it in unsuitable cases.'

7. On examining the order made by the Assistant Collector and the reasons given by him, the Collector who had admittedly jurisdiction and power to entertain the appeals and grant relief, had granted relief to the petitioner. Shri Bhat does not dispute that the order made by the Collector was within his power and jurisdiction. When that is so, the Assistant Collector who is subordinate to the Collector was legally bound to implement his order within a reasonable time unless the Act or an order made by a superior authority like the Tribunal prevented him from implementing the same.

8. The Act, in particular Section 35F on which reliance is placed by Shri Bhat, nowhere provides for not implementing a lawful appellate order on the ground that the Revenue proposes to file and appeal or had actually filed an appeal before the Tribunal. In the absence of a statutory provision which expressly provides for non-implementation of the order of the Collector till the second appeal filed by the Revenue is heard and disposed of by the Tribunal, the Assistant Collector is in duty bound to implement the order of the Collector. So long as the order of the Collector is in force, the petitioner has a legal right to claim for its implementation. On any principle, it is not possible to hold that this right acquired by the petitioner is an 'imperfect' or an incohate right as urged by Shri Bhat.

9. Earlier I have noticed that the application made by the Revenue for stay had even been rejected by the Tribunal. With that, there is really no impediment for the Assistant Collector to implement the order made by the Collector.

10. On the foregoing discussion, there can hardly be any doubt on the right of the petitioner or on the duty enjoined on the Assistant Collector.

11. Which is a suitable case for grant of relief by this Court in exercise of its extraordinary jurisdiction is one that has to be examined on the facts and circumstances of each case and no hard and fast rule can be laid down on all of them.

12. The petitioner, a statutory authority, is also a 'State' for purposes of Article 12 of the Constitution. Any payment to the petitioner will not harm the interests of the Union Government even if it were to ultimately succeed in its second appeal before the Tribunal. In my view, the principle stated in Wade's Administrative Law at page 630 does not militate against the view I have expressed.

13. The Act does not provide for payment of interest on refund made to parties either in pursuance of an order made by the original or appellate authority as in this case. In W. P. No. 5156 of 1979 decided on 21st May, 1979 (S. B. Mamle Desai v. The Controller of Estate Duty, Bangalore and another) noticing the very ruling relied on by Shri Sridhar, I have held that in the absence of an express statutory provision which is also the position in the Act, this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution cannot direct payment of interest. In my view, on the very principles found in Mamle Desai's case, the claim of the petitioner for payment of interest cannot be granted by me.

14. On the foregoing discussion, it follows that the claim of the petitioner except to the extent of interest has necessarily to be accepted by this Court.

15. In the light of my above discussion, I direct the Assistant Collector-respondent to implement the order made by the Collector on 19th July, 1984 (Annexure-A) and make payment of the amounts that are found due to the petitioner in terms of the said order with all such expedition as is possible in the circumstances of the case and in any event, within 30 days from the date of receipt of the order of this Court.

16. Writ petition is disposed of in the above terms. But, in the circumstances of the case, I direct the parties to bear their own costs.

17. Let this order be communicated to the respondent within 10 days from this day.


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