IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.108 OF 1991 PETITION NO.108 OF 1991 PETITION NO.108 OF 1991 Kirloskar Oil Engines Ltd & anr.. Petitioners vs The Assistant Commissioner of Sales Tax, (Assessment) III Pune Divn, Pune .. Respondents .. Mr.E.P.Bharucha Sr.Counsel with Mr.Cyrus Bharucha and Mr.Sachin Chandarana i.b.M.K.Ambalal & Co for Petitioners Ms.Geeta Shastri AGP for Respondents .. CORAM CORAM CORAM : F.I.Rebello and : F.I.Rebello and : F.I.Rebello and J.H.Bhatia, J.H.Bhatia, J.H.Bhatia, JJ JJ JJ DATED: DATED: DATED: 17th 17th 17th April, 2009 April, 2009 April, 2009 P.C. P.C. P.C. 1. The facts need not be set out herein. The issue is same or similar to what was the issue in Tata Tata Tata Motors Ltd vs State of Maharashtra & ors in Motors Ltd vs State of Maharashtra & ors in Motors Ltd vs State of Maharashtra & ors in Writ Writ Writ Petition No.1152 of Petition No.1152 of Petition No.1152 of 1991 decided on 31st decided on 31st decided on 31st January, January, January, 2007. 2007. 2007. The petitioners had an order in their favour. The respondents were not complying with the order of the tribunal. The stand of the respondents is that in the meantime, Rule 41-C had been introduced with retrospective effect. That was the subject matter in Tata Motors Ltd supra. The petitioner’s stand then was upheld namely that it was not restrospective. Once that be the case that issue will have to be answered in favour of the petitioners herein. 2. The respondents in the meantime as and by way of interim measure, during the pendency of the petition had paid rebate to the petitioners. There was an undertaking given to refund to the respondents the amount of Rs.55,00,000/- with interest at the rate of 15 % p.a. As the question of law is answered in favour of the petitioners, undertaking given by the petitioners before the court no longer survives. 3. On behalf of the respondents, learned counsel submits that an application for rectification is pending before the tribunal. Needless to say that the amount which has already been refunded will be subject to any orders that the tribunal may pass on the applications for rectification, being Rectification Application Nos.95 of 1990 and 86 of 1990 which is pending. If the respondents succeed before the tribunal they can also apply for restitution or any other appropriate relief. Petition is allowed in terms of prayer clause (a). No order as to costs. { J.H.Bhatia, J } { F.I.Rebello, J } J.H.Bhatia, J } { F.I.Rebello, J } J.H.Bhatia, J } { F.I.Rebello, J }