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.;