1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3860 of 1993 Aurangabad Paper Mills through Shri Lalji Singh Incharge Excising Finishing Aurangabad. Petitioner Versus 1] Union of India through the Collector, Central Excise & Customs Aurangabad Division, Aurangabad. 2] The Collector Central Excise & Customs P. Surana Complex, Jaffar Gate, Mondha, Aurangabad. 3] Superintendent, Central Excise and Customs Town Range, IV. Marketing Federation Building, First Floor, Jaffar Gate, Mondha Road, Aurangabad. Respondents with WRIT PETITION NO. 3918 OF 1993 Nath Pulp and Paper Mills Limited, Aurangabad, Nath House, Nath Road, Aurangabad through Shri Mohan Apte (General Manager Factories) .. Petitioner 2 Versus 1] Union of India through the Collector, Central Excise & Customs Aurangabad Division, Aurangabad. 2] The Collector Central Excise & Customs P. Surana Complex, Jaffar Gate, Mondha, Aurangabad. 3] Superintendent, Central Excise and Customs Town Range, IV. Marketing Federation Building, First Floor, Jaffar Gate, Mondha Road, Aurangabad. Respondents Mr. R.M. Sharma, Advocate for the petitioners Mr. Alok Sharma, Assistant Solicitor General, for respondent Nos. 1 to 3 CORAM : B.R. GAVAI & S.V. GANGAPURWALA,JJ. DATE : 14TH JUNE, 2010. ORAL JUDGMENT [ PER B.R. GAVAI,J.] : 1] Since the facts and the legal issue involved in both these petitions are identical, the same are heard and decided together. 2] In both these matters, it is the contention of the petitioners that the product, namely, “Sodium Rosinate” is not assessable to excise duty and as such the detention orders passed 3 on failure of the petitioners to pay the amount of excise duty levied on the goods, are liable to be quashed and set aside. 3] In Writ Petition No. 3860/1997, the Aurangabad Paper Mills Ltd. Manufactures craft paper, which is exempt from excise duty. During the manufacturing process, a by-product - “Sodium Rosinate” is produced. The said product is used in the manufacture of craft paper. A show cause notice demanding excise duty on the said product for the period between 1986 to February, 1987 was issued by the Superintendent Central Excise. The said demand came to be confirmed by the Collector. The said proceeding was carried by the petitioner to the Customs, Excise & Good (Control) Appellate Tribunal (CEGAT), New Delhi. The said Tribunal vide its order dated 25th October, 1991, held that the said product “Sodium Rosinate” was not liable for the Excise Duty. Accordingly, an order of refund also came to be passed. During the pendency of the proceedings before the appellate forum, in the year 1986-87, the adjudicatory proceedings were initiated by the Assistant Collector, Central Excise and Customs, Aurangabad for subsequent years. In the said proceeding, an amount of Rs.3,59,221/- was found to be payable by the petitioner. Since the petitioner failed to pay the said amount, an order dated 21st November, 1989 came to be passed, thereby calling upon the petitioner to pay an amount of Rs.3,59,221/- alongwith penalty of Rs.59,000/- i.e. total Rs.4,18.221/- . Being aggrieved thereby, the said writ petition has been filed. . In so far as W.P. No. 3918 of 1993 is concerned, the petitioner Nath Pulp and Paper Mills Ltd. also manufactures craft paper. On 20th September, 1989 the respondent No.3 issued 4 show cause notices demanding excise duty on “Sodium Rosinate” for the 4 period 1.11.1987 to 31.3.1988 , 1.4.1988 to 30.6.1988 and 1.7.1988 to 31.12.1988 and 1.10.1988 to 31.12.1988. The said 4 show cause cum demand notices were confirmed by the Collector. In the said proceeding, an amount of Rs.2,58,056/- was found to be payable by the petitioner. Since the petitioner failed to pay the said amount, an order dated 21st November, 1989 came to be passed, thereby calling upon the petitioner to pay an amount of Rs.2,58,056/- alongwith penalty of Rs.45,000/- i.e. total Rs.3,03,056/- . Being aggrieved thereby, the said writ petition has been filed. 4] Shri Sharma, learned counsel appearing on behalf of the petitioner submits that since the learned CEGAT has held that the produce of Sodium Rosinate is not liable for payment of excise duty, the authorities of the Central Excise have erred in passing the detention order. He submits that when the produce is held not liable to payment of excise duty in one proceeding, the authorities could not have imposed the excise duty on the said product. 5] It would be relevant to note that the Special Bench of CEGAT vide order dated 25th October, 1991 has held that the said product “Sodium Rosinate” is not liable to payment of excise duty. However, in the present case, the adjudicatory orders are passed by the authorities in the year 1989 and 1990. It is further to be noted that the petitioner has failed to challenge the said adjudicatory orders before the appellate forums and accepted the same. IN that view of the matter, the aforesaid detention orders came to be passed. 6] A Constitution Bench of the Apex Court in the matter of 5 “Mafatlal Industries Vs. Union of India” reported in (1997) 5 SCC 536, in the judgment rendering a majority view, has observed thus :- “iv. It is not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund.” 7] In the present cases, the petitioners have accepted hte adjudicatory orders and not preferred appeals challenging the same. In that view of the matter, merely because subsequently in the year 1991, the learned CEGAT has held that the said product “Sodium Rosinate” is not assessable to payment of excise duty, cannot entitle the petitioners, as a matter of right, to the benefit of the said judgment. Merely because some matters were pending before the learned CEGAT cannot give a right to the petitioners to claim, as a matter or right, the refund of excise, when, as a matter of fact, they have failed to challenge the adjudicatory orders. In that view of the 6 matter, no merit is found in the petitions. The petitions are therefore, rejected. Rule is discharged. 8] At this stage, the learned counsel for the petitioner requests for stay of the order passed by this court. In pursuance to the interim orders passed by this court in W.P. No. 3860/1993, the petitioner has already deposited the amount payable towards Excise Duty in this court, and the said amount has been invested in Fixed Deposit Receipt. In that view of the matter and particularly, since the interim relief was operating for a considerable length of time, we are inclined to stay the effect and operation of the order passed by us, for a period of eight weeks from today. [S.V. GANGAPURWALA,J.] [B.R. GAVAI,J.] grt/wp