SCA/3947/1991 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.3947 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED Sd/- ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ===================================================== QUE PHARMA & 1 - Petitioner(s) Versus UNION OF INDIAN & 1 - Respondent(s) =================================================== Appearance : MR PARESH M DAVE for Petitioner(s) : 1 - 2. NOTICE SERVED for Respondent(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 2, =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 12/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) (1) This petition has been preferred with the following principal prayers: SCA/3947/1991 2/3 JUDGMENT “5. In the premises aforesaid, the petitioners most respectfully pray that: A) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ order or direction quashing and setting aside the impugned order being Order-in-Original No.80/REF/91 dated 12.04.1991 (Annexure 'D' hereto) passed by the Assistant Collector of Central Excise, Rajkot, the second respondent herein, and be further pleased to direct the respondents, their servants and agents to refund the amount of Rs.42,390.87 with 18% interest per annum from the date of recovery to the date of payment thereof;” (2) Heard the learned advocate for the petitioners. The learned advocate is not in a position to dispute that during pendency of the petition, the Apex Court has already decided the issue in case of Mafatlal Industries Limited Vs. Union of India , 1997 (89) E.L.T. 247 (S.C.) that any refund arising from any proceeding cannot be claimed by an SCA/3947/1991 3/3 JUDGMENT assessee considering the principle of unjust enrichment without satisfying the requirements stated in the judgment. In the present case the petitioner is not in a position to show that the petitioner falls within the exceptions so as not to be hit by the principle of unjust enrichment. (3) In the circumstances, it is not necessary to set out the facts and contentions in detail. Applying the ratio of the Apex Court decision in the case of Mafatlal Industries Limited Vs. Union of India (supra), the petition is rejected. RULE discharged. There shall be no order as to costs. Sd/- [ D.A. MEHTA, J ] Sd/- [Z.K. SAIYED, J ] *** Bhavesh*