K.C.Agrawal, J. - (1.) M/s. Dhampur Sugar Mills Ltd., Bijnor, has filed this writ petition for mandamus directing respondents Nos. 1, 2 and 3 to refund the sum of Rs. 79,493.97.
(2.) It appears that the petitioner-company was called upon by notices dated 9th May, 1983 and 16th May, 1983 to show cause why they should not be directed to pay duty of Rs. 68,058.05, Rs. 44,086.49 and 4,6,843.40 towards molasses found to have been cleared by the petitioner during the month of March and April, 1983. The petitioner filed an objection stating that the molasses which were controlled commodity was since not allotted by the Excise Commissioner, the Company became entitled to dispose of the same according to whomsoever it liked to do so. Through the order dated 26th November, 1983 the Assistant Collector imposed a duty to the extent of Rs. 68,088.05 for this as excise duty. The petitioner preferred an appeal before the Collector, Central Excise (Appeals) at New Delhi. The appeal was allowed by the order dated 28th June, 1984 and the Assistant Collector's order dated 26th November, 1983 was dismissed. As a result of this order the petitioner became entitled to the refund of Rs. 79,493.97. The company made an application to the authorities concerned for refunding it to it inasmuch as on the order of the Assistant Collector dated 26th November, 1983 being passed this sum had been deposited by the petitioner with the Central Excise. The authorities did not comply with the direction given by the Collector, (Appeals) and went on avoiding payment of the same on one pretext or the other; ultimately the occasion which led to the filing of the present writ petition and compelling the petitioner to seek the relief of mandamus directing the respondents to refund the same.
(3.) A counter-affidavit has been filed on behalf of the respondents contesting the writ petition. The only justification pleaded for not refunding the amount of Rs. 79,493.97 in the counter-affidavit is that the respondents have preferred an appeal to the authorities higher to the Appellate Tribunal along with the application for stay and as both the appeal and the application are pending, the petitioner was not entitled to mandamus.;