1 wp3205-79+++ sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3205 OF 1979 Kopargaon Sakar Sahakar Karkhana Ltd. ..Petitioner. V/s. Union of India & Ors. ..Respondents. WITH W.P. NOS.3168/79, 3169/79, 3170/79, 3175/79, 3176/79, 3177/79, 3178/79, 3179/79, 3180/79, 3181/79, 3182/79, 3183/79, 3184/79, 3185/79, 3186/79, 3187/79, 3188/79, 3189/79, 3190/79, 3191/79, 3192/79, 3193/79, 3194/79, 3195/79, 3196/79, 3197/79, 3198/79, 3199/79, 3200/79, 3201/79, 3202/79, 3203/79, 3204/79, 3205/79, 3206/79, 3207/79, 3208/79, 3209/79, 3210/79, 3211/79, 3212/79, 3213/79, 3214/79, 3215/79, 3216/79, 3217/79, 3218/79, 3219/79, 19/80, 20/80, 21/80, 22/80, 23/80, 24/80, 25/80, 26/80, 27/80, 28/80, 29/80, 30/80, 34/80, 37/80, 38/80, 39/80, 40/80, 41/80. Ms. Ujjawala Sawant i/b. R.V. Govilkar for petitioner in WP No.3205/99. Mr. V.S. Talkute for petitioner in W.P. No.3190/99. Mr. Umesh Mankapure for petitioner in W.P. No.3193/79 & 3214/79 Mr. V.B. Rajure for petitioner in W.P. No.3201/79 & 3208/79. Mr. Ajit Kenjale for petitioner in W.P. No.27/80. Mr. Amit Borkar for petitioner in W.P. No.31/80. Mr. A.P. Kulkarni for petitioner in W.P. No.3218/79. Mr. Bhushan Mahadaik for petitioner in W.P. Nos.3212,, 3192, 3202, 3219, 3216, 3210, 3218, 3213, 3182, 3205, 3187, 3195, 3207, 3422/79, 19/80 & 1365/80. Mr. Vaibhav Mehta for respondent. No.1 UOI. 2 wp3205-79+++ CORAM : B.H.MARLAPALLE AND U.D. SALVI, JJ. DATED : 27TH OCTOBER, 2010 P.C. :- 1. These petitions came to be listed before us on several occasions right from 26/08/2010 onwards and in spite of several adjournments, no reply has been filed by the Union of India, through Secretary, Ministry of Agricultural (Department of Food), New Delhi and no officer from the Central Excise Dept. has bothered to file an affidavit so as to point out as to why the amounts deposited by the petitioners should not be refunded. On the fourth adjournment granted on 15/10/2010, Mr. Dhakephalkar, the learned Senior Counsel appeared for the Government of India, we referred to two different letters i.e letter dated 7/11/2000 issued by the Government of India, Ministry of Consumer Affairs, Food & Public Distribution and another letter dated 25/09/2001 issued by the Department of Revenue, Central Board of Excise & Customs, New Delhi, and passed the order. 2. In the first letter dated 7/11/2000 which was addressed to the Director General, Indian Sugar Mills Association Ltd., it was clearly stated that the excise duty on the differential levy sugar price for the year 1974-75 (w.e.f. 12/7/75) to 1979-80 was not recoverable. The Director General, Indian Sugar Mills Association was required to circulate the 3 wp3205-79+++ said order amongst all the member sugar mills. The second letter dated 25/09/2001 issued by the Under Secretary in the Revenue Department, Central Board of Excise & Customs referred to the different orders passed by the Supreme Court, including in the case of Shri Siddhasiva S.S.K. Limited Vs. CCE, Pune and the letter intimated that the Ministry had decided not to file any appeal against the order dated 15/12/2000 and directed to withdraw the show cause notices. This letter was addressed to all Chief Commissioners of Central Excise and all Commissioners of Central Excise. 3. We, therefore, have sufficient record before us to hold that on the differential levy sugar price, excise duty was not recoverable. 4. There is no dispute that in view of the Supreme Court order in the case of Shri Malaprabha Coop. Sugar Factory Ltd. V/s. Union of India & Anr. [(1997) 10 Supreme Court Cases 216] the levy sugar price for the year 1978-79 and 1979-80 has been settled. On 13/4/1999 the Ministry of Food and Consumer Affairs, Government of India issued the order for Sugar (Price Determination for 1978-79 Production). As per the said order for the State of Maharashtra levy sugar prices came to be fixed for the year 1978-79 and by the second order passed on the same day, the levy sugar price came to be fixed for the State of Maharashtra for the subsequent year 1979-80 and, therefore, the petitioners, in fact 4 wp3205-79+++ got the benefit in terms of these orders. 5. The only issue which remains for consideration before us in the applications filed by the petitioners is, whether on the differential prices i.e. original price paid and the revised price fixed as per the Supreme Court judgment, the excise duty was payable. It is contended by the applicant factories that the price fixed by the orders dated 13/04/1999 was not subject to excise duty and, therefore, they claimed for refund of the amount deposited initially when they filed the petitions. On 23/04/1980, the Division Bench passed the following order in a connected Writ Petition No.3160 of 1979. " This is an application for injunction. We restrain the first defendant from realising or recovering the Central Excise Duty in respect of the levy sugar for the seasons 1978-79 and 1979-80 on the basis of the levy price fixed by the Union. A difficulty has arisen because the petitioners have filed petitions seeking higher price than the price determined. As regards the price fixed by the Government, there cannot be any stay and Excise Duty will have to be paid to the appropriate authorities. As regard regards to excise duty payable on the difference which it between Rs.157.87 and Rs. 212.50 for 1978-79 and Rs.212.50 and Rs.250/- for the year 1979-80. The petitioner will pay into the Court higher excise duty payable on this differential amount on or before 31-5-1980 for the seasons 1978-79 the difference in excise duty for the month of May, 1980 onwards to be paid into the Court on or before the last day of the month following. In respect of the amounts paid into the Court, the petitioners to furnish necessary calculations to the 5 wp3205-79+++ Department on or before 7/05/1980 and within seven days of the end of each month following. If payment is not made into the Court by the period specified, the stay to stand vacated and Excise Department to be at liberty to recover higher excise duty. When the payment is made into the Court the Union of India is permitted to withdraw the amount on giving an undertaking to repay the amount within two weeks or such further time as may be allowed by appropriate order at the time when the petition is finally disposed of. Costs of the Civil Application to be costs in the cause." 6. A perusal of the above order clearly indicates that as a matter of abundant precaution, the sugar factories were directed to deposit excise duty amount, if payable, on the differential amount of levy sugar for the years 1978-79 ands 1979-80. By the above mentioned two letters i.e. the letter dated 07/09/2000 and 25/09/2001, the issue has been settled and we noted in our last order dated 15/10/2010 that there was no excise duty payable on the differential levy sugar price paid for the years 1978-79 and 1979-80 and despite, no reply has been filed to point out to the contrary. 9. Hence the applications are allowed and the Registry is directed to refund the deposited amount with interest accrued thereon, if any, to the petitioners forthwith. This order shall be applicable to all the petitioners-depositors in the connected writ petitions. (U.D. SALVI, J.) (B.H. MARLAPALLE, J.)