R.R. Rastogi, J.
1. By this petition under Article 226 of the Constitution the petitioner M/s Jaswant Sugar Mills Limited, Meerut, through its Receiver, prays for the quashing of the orders dated 3-9-76, 9-2-1977 and 30-9-80/25-11-80 passed by respondents 3, 2 and 1 respectively and further for the issue of a writ, order or direction in the nature of mandamus restraining the respondent from taking any coercive or penal measures for realizing excise duties from the petitioners to the extent of Rs. 2,73,736.94. There is a prayer for the writ of mandamus directing the respondents to allow the petitioner to make an entry of credit for the aforesaid amount in its personal ledger account. The petitioner is a public limited company and owns and operates a sugar factory at Bagpat Road, Meerut. The Central Government by its order dated 15th June, 1972, in exercise of powers conferred by Section 3 of the Essential Commodities Act, promulgated Levy Sugar Supply (Control) Order, 1972, and for the sugar produced during the crushing season 1971-72 fixed the price of the levy Sugar for the petitioner's factory at Rs. 134.40 per quintal. The petitioner alongwith a large number of other sugar factories challenged the Sugar (Price Determination) Order, 1972, by means of writ petitions in this Court, the petitioner's petition being writ petition No. 4076 of 1972. The petitioner had claimed that it was entitled to a price of Rs. 185.24 per quintal. It was granted a stay order by this Court on 28-7-72 whereby the respondents were restrained from giving effect to the impugned order dated 15-6-1972, on the condition that the petitioner furnished Bank Guarantee before the Registrar of this Court in respect of the difference between the price fixed by the Government and the price at which the sugar was actually sold.
2. Excise duty is payable on the sugar under the provisions of Central Excises and Salt Act, 1944 and an additional duty is also payable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Sections 32 and 35 of the Finance Act, 1970, fixed the rate of excise duty at 30 per cent ad valorem and additional excise duty at 74 per cent ad valorem from 1-3-1970. The total duty, thus, payable was 371/2 per cent ad valorem. The petitioner follows self removal system and paid excise and additional excise duty on the basis of the price at Rs. 185.24 per quintal which was subsequently reduced to Rs. 175 per quintal. The petitioner maintained a personal ledger account in this behalf and made the necessary entries therein and thus claims to have paid a sum of Rs. 2,73,736.94 in excess by way of excise duty. Writ Petition No. 4076 of 1972 was dismissed by this court on 13-3-1975 and according to the petitioner it became entitled to refund of the aforesaid amount of Rs. 2,73,736.94. It made a written claim on 8-8-1975 for refund of this amount to the Superintendent, Central Excise (M.O.R.) Meerut, respondent No. 3. The latter rejected that claim by his order dated 3-9-1976 on the ground that it was for the customers to claim the refund of excess price including the excise duty by way of an appropriate proceeding. Aggrieved the petitioner filed an appeal before the Appellate Collector, Central Excise and Customs, New Delhi, respondent No. 2. The Appellate Collector concurred with the view taken by the Assistant Collector and rejected the appeal by his order dated 22-1-1975. Still aggrieved the petitioner filed a revision which as well was dismissed by the Union of India, respondent No. 1, by order dated 25-11-80 after holding that since the petitioner had not agreed to pass on the refund to wholesale buyers, the petitioner cannot be allowed to retain and usurp the amounts which are not their due. The petitioner, now, seeks the quashing of these orders and a mandamus for directing the respondents to refund the aforesaid amount.
3. There is no dispute on facts which have been narrated above. The simple question that falls for our consideration is as to whether the petitioner can be allowed refund of the additional excise duty paid by it. As noted above, the assessee paid excise duty on the basis of self removal system and the basis was the price at which sugar was sold by it to its customers. The price of levy sugar was fixed by the Government at Rfs. 134.40 while the assessee claimed that it was entitled to sell at the rate o Rs. 185.24 per quintal and, pending the writ petition before this court, it was allowed to make the sales at this price. Ultimately, their claim was not accepted by this Court and the price fixed by the Government was upheld. It is, in these circumstances, that the petitioner claims refund of the additional excise duty paid by it. In support of its claim the petitioner placed reliance on the decision of a Bench of this Court in Civil Misc. Writ Petition No. 5751 of 1973, Nawabganj Sugar Mills Company Limited v. Union of India and Ors., decided on November 11,1974. In that case the petitioner challenged the validity of the demand requiring it to pay a certain amount by way of excise duty on sugar produced by it during the 1971-72 season. The view taken by the Court was that irrespective of the price that the petitioner actually charged for the levy sugar produced by it during the said season, the price determined by the Central Government was the prevailing price and the excise and the additional excise duty on the levy sugar for the 1971-72 season could be calculated only at the rate of 2| per cent and 6 per cent of its price as determined by the Central Government under the Sugar Price (Determination) Order, 1972. They were not entitled to demand any extra amount on the basis of any higher price actually charged by the manufacturers. Here, the petitioner company had already paid excise and additional excise duty on the levy sugar not on the basis of the price determined by the Central Government but on the price claimed by it. Ultimately, the price determined by the Central Government has been upheld and as for the excess price charged by the petitioner it was made clear 'that nothing contained in this Order will affect the right of any person entitled to claim any relief with regard to any excise price charged by the petitioner in appropriate proceedings.' No such person has come forward uptil now to claim such relief against the petitioner and the excess amount charged by it has gone to enrich its coffers and the question is as to whether it should be further allowed refund of excess duty paid by it and particularly in exercise of writ jurisdiction under Article 226. In our opinion this Court should not do so. Anyhow, the decision rendered in M/s Nawabganj Sugar Mills Company Limited case does not lend any help to the petitioner.
4. Our attention was also invited to another decision of a Bench of this Court in H.R. Sugar Factory (Pvt.) Limited v. Union of India and Ors., Civil Misc. Writ Petition No. 635 of 1975 decided on March 11, 1980. That was a case similar to the present one and the petitioner's claim for refund of excess excise duty paid by it which had been repelled by the excise authorities was allowed by this Court. In taking that view reliance was placed on the decision in M/s Nawabganj Sugar Mills case (Supra). The aspect which is engaging our attention was not considered in that case.
5. Learned counsel for the petitioner also cited a decision of the Supreme Court in D. Cawasji and Co. v. State of Mysore and Anr., 1978 E.L.T. (J 154) and of the Bombay High Court in Wipro Products Ltd. v. Union of India, 1981 E.L.T. 531. In D. Cawasji (Para 10) it has been laid down that a Court cannot deny refund tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so. That was a case where the payments of cess in question had been made by the petitioner under a mistake of law and they discovered the mistake only when the High Court declared that the provisions of the Act and the amendments thereto under which those payments had been made were unconstitutional. We do not think that in the present case it can be said that the disputed payment of excise and additional excise duty had been made by the petitioner under any mistake of law. The same was the position in the Bombay case viz., Wipro Products Ltd. (supra). There the petitioner company, which, inter alia, manufactures vanaspati and soap, cleared the vanaspati under the self removal procedure and the soaps after filing price lists from time to time. The duty paid included the full price recovered from the dealers without excluding therefrom the post-manufacturing expenses and the selling profits attributed thereto. A single Judge of the Bombay High Court in Bombay Tyres International Ltd. v. Union of India and Ors. 1979 Excise Law Times (J 625) had held that the excise duty is leviable only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post manufacturing costs and profit arising from post-manufacturing operations, namely selling profit. After that decision the petitioner lodged a refund claim on the ground that the post-manufacturing expenses are excludable for the purpose of arriving at the assessable value. In other words that was also a case where some payments by way of excise duty had been made under a mistake of law. The court did not agree with the contrary view taken by the Delhi High Court in Hyderabad Asbestos Cement Products Ltd. v. Union of India, 1980 Excise Law Times 735 and the Madras High Court in Madras Aluminium Co. Ltd. v. Union of India, 1981 E.L.T. 478 and chose to rely on an earlier decision of that very court and held that the petitioners claim was allowable. It would be seen that in both these cases excesss payment had been made under a mistake of law which is not the position obtaining in the present case.
6. As noted above, the Delhi and Madras High Courts have taken different view. In Hyderabad Asbestos Cement Products Ltd. (Supra) the view taken was that if the duty of excise and additional duty was not imposed retrospectively, normally, these might have already been realised from the consumers. Therefore, the benefit of the amount of refund illegally levied and collected should in fairness belong to the consumers or on the equitable plea would be disbursed to the buyers from whom the duty was realised and not be appropriated by the manufacturers who in equity were not entitled to it. Similarly, the Madras High Court in Madras Aluminium Co. Ltd. (Supra) took the view that though excise duty is levied at the time of production or manufacture of goods for consumption, in substance, it is a tax on consumption and therefore, if the excess duty collected from the petitioner has been recovered by him from the consumer it is the consumer who can claim refund of excess duty paid by him. If the duty is paid under mistake of law, it can be claimed either in a civil court or under writ proceedings provided the claim is made within three years from the date of the discovery of the mistake. As regards the relief which can be allowed in writ jurisdiction the view taken was that though the High Court can in its discretion, direct refund of duty illegally collected from the petitioners but where the petitioners cannot in their turn refund the same prorata to the actual consumers from whom excise duty was recovered, the court will be justified in refusing to grant refund.
7. In our opinion the discretionary powers under Article 226 of the Constitution should be exercised for the public good and for the advancement of the cause of justice and not in a case like the present one where the excise duty charged by the petitioner is refundable to the actual consumers but for some reason the petitioner cannot return it to them. It will amount to unjust enrichment of the petitioner by having the benefit of both collection of excess price from the customers as also the benefit of refund from the Government.
8. Accordingly, we dismiss the petition but make no order as to costs.